ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal Misc.
Application No.140 of 2012
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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Present:
Mr. Justice Ghulam Sarwar Korai
Mr. Justice Naimatullah Phulpoto
Gulraiz
Ahmed Raza………………………………………………Applicant
Versus
The State and another……………………………………………Respondents
For Applicant : Dr. Rana M. Shamim Advocate.
For
Respondents : Mr. Noor Mohammad Dayo
Special prosecutor NAB.
Date of
hearing : 02.10.2013.
O
R D E R
NAIMATULLAH PHULPOTO, J.- Through the instant Criminal Misc.
Application applicant/accused has impugned an order of the Accountability Court
No.IV, Sindh at Karachi dated 20.06.2011, passed in
Reference No.54/2007, whereby an application under Section 265-K Cr.P.C, was
dismissed. The relevant portion of the order dated 20.06.2011 is reproduced as
under:-
“8. According to the record the
applicant/accused was serving in Sales Tax Department as Auditor since 1998 and
according to the investigation conducted by the investigation agency he is the
mastermind of the alleged fraud and fraudulently made refund of Rs. 17.47 million of the Sales Tax against forged documents
in the name of fake company i.e. M/S World Magnetic Fashion (Pvt) Ltd which according to the Prosecution is not
registered and have no valid registration number.
9. Earlier an application under Section
265-K Cr.P.C was filed by the applicant/accused which was dismissed by this
Court on the ground that charge was not framed and sufficient material was
available with the Prosecution to connect the applicant/accused with the
commission of offence alleged against him. Such dismissal was challenged before
the Hon’ble High Court and while disposing off
Criminal Miscellaneous Application No.101/2009, the Hon’ble
High Court has been pleased to direct this Court to examine material witnesses
within the period of four months particularly Manager MCB, Barkat-e-Haidery Branch, Karachi within a period of four months and
thereafter applicant/accused was given option to file fresh application under
section 265-K Cr.P.C.
10. After receipt of the order passed by the Hon’ble High Court charge was framed and one PW namely
Muhammad Shahzad Akhtar,
Bank Manager, MCB Barkat-e-Haidery
Branch, Karachi has been examined as PW-1 at exhibit 6. In his evidence he has
implicated the present applicant/accused along with other accused persons and
he has also produced Photostat copies of account opening form, form 29 issued
under section 205 of the Companies Ordinance, 1984, Specimen Signature Card,
Resolution of the Board of Directors of the Company, copies of NIC and other
relevant documents during the evidence. According the form 29, produced at
exhibit 6/2, the present applicant/accused is one of the directors of the
company. His NIC number is also mentioned in this form and the learned advocate
for applicant/accused is unable to justify the mentioning of NIC number of the
applicant/accused in this form so also its availability with the bank. The
material irregularities were committed by the PW-1 Muhammad Shahzad
Akhtar at the time of opening of the account of the
company and it has been successfully established by the learned advocate for
the applicant/accused that the day on which account was shown to have been
opened was a public holiday i.e. Sunday and he has been dismissed from service
of the bank due to negligence. In evidence it has come on record that account
was opened by the present applicant/accused Syed Aamir
Ali and Talat Farooq. It also appears from the
perusal of the evidence of PW-1 Muhammad Shahzad Akhtar that four cheques of Sales
Tax Refund amounting to Rs.1,7400,836/-were credited
in the account of the company. These cheques were issued by the sales tax
department where the present applicant/accused was employee and holder of a
public office. It appears that no case is made out by the accused for his
acquittal under section 265-K Cr.P.C. It is settled principle of law that
courts are competent to acquit accused facing trial at any stage even before
framing of the charge except where there is probability of his conviction.
11. The other aspect of the case is that a
supplementary reference is also filed by the NAB wherein other accused persons
namely S.M.Ibrahim, Nisar
Ahmed (Auditor), Akhtar Hussain
(Auditor) Gari Khan (Auditor) Iqbal
Ahmed Magsi (Sr.Auditor), Muhammad
Saleem, Muhammad Riaz and Amir Hussain are also added
as accused in this reference.
12. In view of the above facts and
circumstances in my humble opinion no case is made out by the applicant/accused
for his acquittal under section 265-K Cr.P.C resultantly his application is
dismissed. I have great respect to the case laws placed on record by the
learned advocate for the accused but in my humble view the facts and
circumstances of these citations are distinguishable for the facts and
circumstances of the case in hand. Application is dismissed accordingly.
Order
accordingly.”
3. Dr. Rana M. Shamim, Advocate for applicant, mainly argued that five
prosecution witnesses have been examined by the Accountability Court and they
had not supported the case of the prosecution. Evidence of the remaining P.Ws
would not improve the prosecution case. He has further contended that from the
Reference filed in the Accountability Court, no offence is made out against the
applicant/accused. It is argued that there is no probability of conviction of
the applicant in this reference. He has further contended that main accused Mst. Sher Bano
is absconding in this case and applicant/accused has no concern with her, trial
will take longtime. Lastly, he submitted that applicant/accused is entitled for
acquittal u/s 265-K Cr.P.C.
4. Mr. Noor Mohammad Dayo
Special Prosecutor NAB argued that evidence of material witnesses is yet to be
recorded by the Trial Court. Appreciation of evidence is primary function of
the Accountability Court, where the Reference is pending. He has submitted that
sufficient documentary evidence has been produced against applicant/ accused
during trial. Prosecution will examine remaining witnesses and there is every
probability of the conviction of the accused in this case.
5. We have heard learned counsel for the
parties and have gone through the material available on record.
6. Learned Judge, Accountability Court in
his order dated 20.06.2011 has mentioned that evidence of PW Mohammad Shahzad Akhtar, Bank Manager,
MCB, Karachi has been recorded. He has implicated the applicant/accused and other
accused persons in this case and has produced Photostat copies of account
opening form, form 29 issued u/s 205 of the Companies
Ordinance, 1984, Specimen Signature Card, Resolution of the Board of Directors
of the Company, copies of NIC and other relevant documents in evidence.
According to form 29 produced at Ex.6/2, present applicant/accused is one of
the Director of the Company. His NIC number is also mentioned in this form.
Four other P.Ws have also been examined. Supplementary
Reference has also been filed. We are of the considered view that Trial Court
had rightly dismissed an application u/s 265-K Cr.P.C. for the reasons that
prosecution has produced documentary evidence, still prosecution want to
examine witnesses. Court under the garb of section 265-K Cr.PC cannot deprive
prosecution to produce evidence. Usually criminal case should be allowed to be
decided on merits after recording prosecution evidence, statement of accused
and hearing arguments of both parties. The scope of the provisions of Sections 249-A,
265-K and 561-A of Criminal Procedure Code has been examined by the Honourable
Supreme Court of Pakistan in the case of The
state through Advocate General, Sindh High Court of Karachi vs. Raja Abdul
Rehman (2005 S.C.M.R 1544), relevant portion is reproduced as under:-
“On consideration of
arguments of Dr. Qazi Khalid Ali, Additional
Advocate-General and Ch. Aitzaz Ahsan,
Senior Advocate Supreme Court and the case-law relied upon by both of them in
support of their respective contentions, there can be no dispute that an application
under section 249-A, Cr.P.C. can be filed, taken up for hearing and decided at
any time or stage of the proceedings and the words “at any stage” denote that
the application under section 249-A, Cr.P.C can be filed even before
prosecution evidence had been recorded or while the exercise of recording of
evidence is going or when the exercise is over. It is, however, to be noted
that though there is no bar for an accused person to file application under
section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the
facts and circumstances of the prosecution case will have to be kept in mind
and considered in deciding the viability or feasibility of filing an
application at any particular stage. The special or peculiar facts and
circumstances of a prosecution case may not warrant filing of an application at
a stage when the entire prosecution evidence had been recorded and the case was
fixed for recording of statement of the accused under section 342, Cr.P.C. This Court in the case of Bashir Ahmed v. Zafar
ul Islam PLD 2004 SC 298 and Muhammad Sharif v.
The State and another PLD 1999 SC 1063 (supra) did not approve decision of
criminal cases on an application under section 249-A Cr.P.C. or such allied or
similar provisions of law, namely, section 265-K Cr.P.C. and observed that
usually a criminal case should be allowed to be disposed of on merits after
recording of the prosecution evidence, statement of the accused under section
342 Cr.P.C. recording of statement of accused under section 340(2) Cr.P.C. if
so desired by the accused persons and hearing the arguments of the counsel of
the parties and that the provisions of section 249-A, section 265-K and section
561-A of the Cr.P.C. should not normally be pressed into action for decision of
fate of a criminal case.”
7. It will not be out of place to mention
that learned Accountability Court has examined five witnesses. Learned Special
Prosecutor NAB stated that prosecution will examine only the material witnesses
within a short possible period. From the tentative assessment of the material
placed on record, we have no hesitation to hold that charge is not groundless
and at this stage no finding can be recorded by this Court that there is
probability of the conviction of the applicant/accused in this case. Deeper
appreciation of the evidence is the exclusive function of the Trial Court.
Learned Trial Court for the valid and sound reasons has
dismissed the application under section 265-K Cr.P.C. In the aforesaid case,
principle has been laid down by the Honourable Supreme Court while dealing with
the powers of the Courts under section 561-A Cr.P.C. in quashing proceedings
pending before the Trial Court that when law provides a detailed enquiry into
the offences for which an accused has been sent up for trial then, ordinarily
and normally the procedure prescribed by law for deciding the fate of the
criminal case should be followed, unless some extraordinary circumstances are
shown to exist to abandon the regular course and follow the exceptional routes.
In the Reference before the Trial Court nothing exceptional has been brought on
record rather there is apparently, documentary evidence to connect the
applicant/accused in the commission of the offence.
8. For the above
stated facts and circumstances, we find no merit in the above Criminal Misc.
Application, the same is dismissed with direction to the
Trial Court to decide the Reference expeditiously under intimation to this
Court.
JUDGE
JUDGE
Gulsher/PA