THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No. 797 of 2019

 

Present: Mr. Justice Muhammad Iqbal Kalhoro

†† †††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††† ††Mr. Justice Abdul Mobeen Lakho

 

 

Date of Hearing††††††††††††† :†††††††† 22.02.2022

 

Date of Judgment †††††††††:††††††† 18.03.2022

 

Appellant††† ††††††††††††††††††††††:†††††† Askari Bank Limited through Mr. Abid Nasim advocate

 

Respondent†††††††††††††††††††††† :††††† Tara Chand through Mr. Tariq Hussain advocate

 

†††††††††††††††††††††††††††††††††††††††† :††††† Mr. Irfan Ahmed Memon, DAG

 

 

J U D G M E N T

 

 

ABDUL MOBEEN LAKHO, J.- Askari Bank Limited appellant has assailed order dated 30.09.2019, passed by learned Banking Court No.III at Karachi in Criminal Complaint No. 07 of 2016, filed by the appellant under Section 20(1)(a) and (b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the respondent and another, whereby, application under section 265-K Cr.P.C filed by the respondent was allowed and resultantly, the respondent was acquitted.

2.†††††† The relevant facts as disclosed in the complaint are that appellant filed complaint against respondent and one Ashok Kumar under Sections 20(1)(a) and (b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, who were partners of M/s Soneri Traders, a registered partnership firm being run by them. According to the complaint, in the year 2012, lender-borrower relationship started between the accused and the complainant Bank; accused availed various finance facilities from the complainant bank, which were lastly renewed in the year 2014. The complainant Bank on the basis of representation and warranties of accused, enhanced the finance facilities in favour of accused vide letter dated 09.10.2014. In order to secure the said finance facilities, the accused signed, executed and delivered various finance and security documents including banking facility letter, finance agreements, demand promissory notes, letters of continuity and letter of discontinuity/ purchase of bills of exchange/ promissory notes and other negotiable instruments in favour of the complainant. The complainant bank also created mortgaged over five properties so also created hypothecation charges over fixed and current assets of the accused for an aggregate amount of Rs.770 Million approximately. However, as per stock report dated 30.11.2014, stock valuing Rs.438,300,000/- were available under the hypothecation of the complainant bank. On 07.07.2015, on the directions of this Court, Official Assignee was directed to prepare inventory of hypothecated stock, but it revealed that no hypothecated stock was available at the premises of the accused and it was found that accused misappropriated the hypothecated stock and concealed such fact from the complainant bank. The accused also obtained various export related finance facilities on the basis of their expressed undertakings, assurances and warranties, in order to execute the export orders but instead of executing export orders, the accused misappropriated the funds of the bank and public money for their personal benefits. It is further submitted that accused also exported various goods to their foreign buyers but they did not arrange repatriation of foreign exchange to the country. According to complainant Bank the finance facilities were to be paid by the accused till 31.01.2015, but they did not adjust their liabilities and committed default in fulfilling their financial and contractual obligations, hence, the complainant Bank instituted a suit No.B-33/2015 before this Court for recovery of the outstanding dues.

3.†††††† The complainant Bank filed a complaint under Section 20(1)(a) and (b) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, against respondent and Ashok Kumar, pursuant thereof, the statement of complainantís witness Aftab Hussain was recorded and thereafter the complaint was admitted and registered by learned trial court and consequently, B.Ws were issued against the accused. On 02.09.2016, complainant Bank filed application under Section 20(6) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 for withdrawal of criminal complaint against accused Ashok Kumar on the basis of settlement arrived at between the bank and Ashok Kumar, which was allowed vide order dated 02.09.2016. However, respondent/Tara Chand appeared before the trial Court and furnished surety. Copies of the documents were supplied to him, however, before framing of charge, the respondent moved an application under Section 265-K Cr.P.C, which was heard by learned trial court and ultimately it was allowed vide impugned order dated 30.09.2019, hence complainant bank has filed instant Criminal Acquittal Appeal against the impugned order.

4.†††††† Learned counsel for the appellant contended that the impugned order has been passed by learned trial court with slipshod manner without examining the documents produced by the appellant; that from the documents available on record, it is manifestly established that the respondent had committed offence under the Financial Institutions (Recovery of Finances) Ordinance, 2001; that learned trial court relied upon the report submitted by the FIA authorities relating to signatures of the respondent onthe financing documents, however, it is settled law that reports furnished by the investigating agencies has no binding effect and Courts have to apply their own mind while passing the order; that acquittal of respondent before recording of evidence has resulted in miscarriage of justice; that the trial court misconstrued that there was no evidence against the accused, although sufficient documentary evidence was available on record to show that the accused had executed and signed the financing and security documents prior to leaving the country. He lastly prayed for remanding the case back to the trial court so that complainant Bank could produce its evidence and the case is decided on merits.

5.†††††† On the other hand learned counsel appearing for respondent supported the impugned order. It is argued that Ashok Kumar obtained loan and all the documents were signed by Ashok Kumar whereas, signatures of the respondent were fake on the charge documents; that report furnished by the FIA also confirms that the signatures of the respondent on the charge documents were false and fake, as such FIR No. 04/2018 u/s 420/468/471/109 PPC was lodged against Ashok Kumar, Abdul Rasheed and Aftab Hussain at FIA CBC, Karachi; that according to the complainant bank respondent signed executed and delivered various security and charge documents, however, the respondent was at abroad during such period which is confirmed from the travel history of the respondent; that accused Ashok Kumar in connivance with the Aftab Hussain bank official obtained finance facility on the basis of fake and forged documents; that the learned trial court passed the order while assigning cogent and valid reasons and it is well settled that findings of acquittal are not to be interfered with unless the same are shown to be perverse, shocking or impossible, which is lacking in the instant matter, hence the instant Acquittal appeal merits dismissal.

6.†††††† Learned DAG has also supported remand of the case on the ground that the findings are based on documents which were not even exhibited in the evidence.

7.†††††† We have heard learned counsel for the parties and have gone through available record minutely.

8.†††††† The principles governing acquittal appeals are different than the ones regulating appeals against conviction, and just because a contrary view is possible on reappraisal of the evidence by the court hearing appeal would not be sufficient to justify interference in the findings of acquittal and that after acquittal double presumption of innocence runs in favour of the accused. However, in an acquittal appeal, the order of acquittal of the accused under section 249-A or under section 265-K of the Cr.P.C would not have the same sanctity as orders of acquittal after full-dressed trial. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty is no less than from the conviction of an innocent.

9.†††††† Perusal of record reflects that primarily trial court recorded acquittal of the respondent on two grounds, firstly, that the FIA Forensic Laboratory Islamabad has opined that loan papers were containing fake signatures of respondent and secondly that respondent was out of Pakistan at the relevant time.

10.†††† As regards to the opinion of the handwriting expert is concerned, it is observed that Section 510 Cr.P.C deals with production of such report before the trial Court, the said provision is reproduced as under:

"510 Report of Chemical Examiner, Serologist, etc.---Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, Finger-print Expert or Fire-arm Expert appointed by Government [or of the Chief Chemist of the Pakistan Security Printing Corporation Limited,] upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under the Code."

 

11. ††† From the above provision of law it is clear that this provision is applicable in a case of report of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger-print and Fire-arm Expert appointed by Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited. If any report is issued by the above named officers in respect of various fields of sciences mentioned in it then their report can be produced in evidence without calling them and can be used as evidence in any inquiry or trial -or other proceedings under Criminal Procedure Code. However, the handwriting science is a completely different field and a different science than the above mentioned categories of sciences. As such, we are of the firm view that the opinion/report of the handwriting expert cannot be relied upon without examining its author and without taking the same on record and exhibited in order to provide an opportunity to the other side to cross-examine him.

12.†††† As regards to second observation of the learned trial court is concerned, record reflects that in the instant matter, the trial Court has acquitted the respondent while considering the travel history of the respondent obtained from the FIA. However, it is observed that an attempt to disprove or at least to challenge the authenticity of document should have been provided to the other side. It is settled principle of law that plea of alibi, can be substantiated through leading evidence which an accused shall, no doubt, enjoy but at his turn within meaning of Section 265-F of the Code. In any event, law favours the disposal of cases on merits. It is in the interest of justice that both the parties should be provided opportunity to prove their versions by producing evidence. Duty of the court is not only to protect innocent, but also to punish the guilty.

13.†††† The object of exercise of powers is to prevent abuse of law available to the learned trial Court under sections 265-K and 249-A of the Cr.P.C., however, in a case where sufficient, prima facie, evidence is available, the powers may not be exercised as to throttle the process of justice. The main consideration to be kept in view would be whether the continuance of the proceedings before the Court would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

14.†††† Record reflects that the present case is based upon documentary evidence and the evidence was yet to be recorded against the respondent. We are conscious of the fact that there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the complainant Bank to prove its case by producing evidence.

15.†††† For the foregoing facts and discussion, we are of the opinion that the jurisdiction under section 265-K of the Cr.P.C. has not been exercised properly by the trial Court. Therefore, this acquittal appeal is allowed and the impugned order dated 30.09.2019, passed by learned Banking Court No.III at Karachi in Criminal Complaint No. 07 of 2016 is set aside, the matter is remanded to the trial court, which shall proceed from the stage, at which the case stood when the application of respondent under section 265-K of the Cr.P.C was decided.    

JUDGE

††††††††††††††††††††††††††††††††††††††††††††††††††††††††† JUDGE

 

 

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