P L D 1970 Karachi 779 (PLP)

G. M. Shah for Respondent No.

1. Manzoor Hussain for the State. Date of hearing : 16th March 1970. JUDGMEMT This revision petition under section 439, Cr. P. C. has arisen in the following circumstances On 15‑3‑1966 one Nasir Ahmed Siddiqi, an officer of the Chartered Bank, Karachi (respondent No. 1) filed a direct complaint against the two petitioners in the Court of S. D. M., Old Town, Karachi for offences under sections 406 and 420, P. N. C. In the complaint it was inter alia alleged that from 24th August 19.2 to 6th March 1965, the petitioners had taken advances from the respondent‑bank to the tune of Rs. 15,00,000 00 (Rupees Fifteen lakhs) on false declarations regarding their stocks and that the petitioners would not have advanced these amounts if they have not been so received. It was also alleged in the complaint that the petitioners had orally confessed their guilt but later denied all knowledge about their liability. In the complaint, apart from the complainant himself, four other persons, namely, Denys William Gay, Dinshaw Phirozeeshaw Sidhwa, Taj Muhammad Pathan and a Representative of International Forwarding Agency Ltd. were cited as witnesses. The learned Magistrate examined only the complainant and William Gay and immediately after the examination of the latter on 8‑8‑1966 he announced his order discharging the petitioners under section 253 (2), Cr. P. C. Being aggrieved by this order the respondent No. 1 filed a revision petition under, section 435, Cr. P. C. which was allowed by the order dated 9‑5‑1967 of the learned City and Additional District Magistrate, Karachi.

2. Mr. Fakhruddin, the learned counsel appearing for the petitioners has assailed this order of the learned City and A. D. M. on the grounds that this is not a proper order as it gives no reasons. Secondly, it is contended that the Additional City Magistrate's order is a reasonable one and should not have been set aside in revision. It was lastly contended that the dispute appears to be one of civil liability and on this account also the proceedings against the petitioners should not be allowed to continue.

3. I have gone through the order dated 9‑5‑1967 of the learned City and A. D. M. and I consider it to be a proper order in all respects. Merely because it is a short order would not necessarily show that the learned Additional District Magistrate did not apply his mind to the facts of the case. As the order itself shows the learned A. D. M. heard the parties at length ` and perused the entire record, after which he came to the conclusion that the prosecution was not given a chance to bring their evidence on record and that the learned A. C. M. had been rather hasty in passing an order under section 253 (2), Cr. P. C. I feel that the learned City and A. D. M. was very discreet in not expressing any opinion on the merits of the case as it would have been prejudicial to the case of one party or the other. No fault can, therefore, be found with this order of the learned City and A. D. M. In support of his contention Mr. Fakhruddin, the learned counsel for the petitioner has relied on a judgment of Anwarul Haq, J. reported as Sheikh Muhammad Amin v. The Superintendent of Police (P L D 1960 Lah. 684) to show that omission to examine all prosecution witnesses by itself would not be a ground for setting aside an order of discharge. This view has also been expressed in a later case reported as Mst. Saeeda Begum and others v. The State (P L D 1960 Lah. 1005). While there can be no quarrel with this general proposition each case has to be decided on its own facts.

4. I have myself gone carefully through the evidence so far recorded and the various documents which Mr. G. M. Shah wishes to rely upon in the proceedings but I would not like to express any opinion on the merits thereof. I would, however, point out that although a Magistrate has no doubt a discretion under clause (2) of section 253, Cr. P. C. to discharge the accused without taking all the evidence that the complainant wishes to produce, this does not mean that he can cut short the proceedings or stifle the prosecution by refusing to summon any of the witnesses which the complainant wants to examine. That such duty is cast on the Magistrate to examine all the witnesses can be seen from the clear language of section 252 which reads as follows :‑ "When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the com plainant (if any) and take all such evidence as may be produced in support of the prosecution Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the. complaint has been made by a Court. The Magistrate shall ascertain, from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary." Subsection (1) of section 253, Cr. P. C. also makes it incumbent on the Magistrate to record all the evidence before he discharges the accused under section 253 (1). Subsection (2) is, however, an exception and can be invoked only in cases where the C charge appears to be groundless. I need hardly point out that in view of the clear allegations of deception and fraud mentioned in the complaint itself this could not be considered to be a case of that nature. Mr. G. M. Shah, the. learned counsel for the respondent has stated at the Bar that the order dated 8‑8‑1966 L was passed by the learned Magistrate in a hurry as, he was under orders of transfer and actually handed over charge only two days thereafter. The learned counsel further contends that the fact that such a lengthy order was written immediately after it was announced orally on 8‑8‑1966 also speaks volumes against the bona fides of the said order. I do not consider it necessary to go into this question as I feel that I should decide this matter on merits of the order without entering into the circumstances under which the order was passed. The order of the learned A. C. M. read as a whole clearly gives an impression that the learned Magistrate had assumed the jurisdiction of the trial Court at that early stage and on the evidence of two witnesses he found the case against the petitioners to be false without event taking the trouble of examining the remaining witnesses cited in the complaint itself. Mr. G. M. Shah, the learned counsel for the respondent stated at the Bar that he ha i to examine a representative of the International Forwarding Agency to prove that the stocks pledged by the petitioners with the respondent No. 1 were already pledged with the Bank of China. The learned counsel stated that there was documentary evidence to that effect such as Exh. I/F‑20, wherein the respondent had given an undertaking that the said stocks were free from any lien. Mr. G. M. Shah also stated that Mr. Sidhwa, Accountant of the Bank was a very material witness, who could prove that the petitioners had committed a fraud upon the respondent‑Bank. I do not find it necessary to go into this question at this stage or to express any opinion on the merits of the evidence already led. I feel that this is for the trial Court to consider and any expression of opinion is likely to prejudice the case of one party or the other. I would only observe that this is a fit case where the learned Magistrate should have in any case examined the entire evidence and then considered the question whether it was necessary or not to frame a charge. The learned A. C. M. was not justified in considering the charge to be groundless without even recording the evidence of all the witnesses that the complainant desired to place before him. I may in this connection refer to a case reported as Nur Muhammad Khan v. Sabz Ali and another (P L D 1965 Lah. 345) where Sardar Muhammad Iqbal, J. while dealing with a similar case characterized an order of a Magistrate passed in such circumstances to be premature.

5. The second contention of Mr. Fakhruddin is equally devoid of merit. I am not impressed by the reasons given by the learned Magistrate for coming to the conclusion that the charge was groundless. As I have already stated I would not express any opinion on the merits on this question also but the considerations which appear to have weighed with the Magistrate should have been more appropriately taken into account at the time of deciding the case. Merely because the Bank had advanced huge amounts to the petitioners on several occasions it could not, by any stretch of imagination, be assumed that this could not be a case of cheating at all. The reasoning of the learned Magistrate, however, proceeds entirely on this con sideration.

6. Mr. Fakhruddin, lastly contended, that this is essentially a matter of civil liability and, therefore, the proceedings against the petitioners were an abuse of the process of the Court. I have no hesitation in repelling this contention as well. It is no doubt correct that in every case of cheating there would also be a civil liability. Would it, therefore, mean that every case of cheating has to be quashed on this ground? In my opinion the answer is obviously in the negative. In this connection I may with advantage refer to the following observations of Sardar Muhammad Iqbal, J. in Nur Muhammad Khan v. Sabz Ali and another :‑ "The fact that a civil suit is pending between the same parties in respect of the same transaction by itself does not bar criminal proceedings on the same facts. A particular act may give rise to proceedings both under the civil and criminal Law. Whereas the civil suit is to determine the rights of the parties and may entitle the plaintiff to a decree; in criminal matters, particularly in cognizable cases, the accused is liable to the State and the Society for the offence which he has committed. Thus an accused person cannot be discharged under section 253 (1), Criminal Procedure Code, merely because a civil suit in respect of the same matter is pending between the parties."

7. Similarly in a later case reported as Rab Nawaz and another v. The State (P L D 1965 Lah. 676) it was observed that mere existence of a civil remedy would not bar a criminal trial. This principle isle well settled and needs no authority.

8. I would for the reasons given above dismiss this revision petition and maintain the order dated 9‑5‑1967 of the learned City and A D. M. As however the case is very old, the learned Magistrate who would proceed with the enquiry, is directed to deal with it expeditiously. A. E. Petition dismissed.