IN THE HIGH COURT OF SINDH, AT KARACHI

IN THE HIGH COURT OF SINDH, AT KARACHI

Cr. Revision Application No.30 of 2011

Present:- Mr. Justice Mohammad Ather Saeed

Mr. Justice Irfan Saadat Khan.

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Date of hearing : 14.03.2011.

Applicant in person

Respondent No.1 through : Mr. Muhammad Arif Khan Advocate.

Respondent No.2. : None

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O R D E R

IRFAN SAADAT KHAN, J: This Criminal Revision Application has been filed against the order dated 22.01.2011 passed in Criminal Complaint No.46/2009 by the Banking Court No.II at Karachi whereby the application under Section 249-A Cr.P.C., converted into 265-K Cr.P.C., filed by the applicant was dismissed.

2. Briefly stated the facts of the case are that the respondent No.1 through its attorney filed Criminal Complaint under Section 20(1)(b) & (2) of the Financial Institution (Recovery of Finance) Ordinance-2001 (the Ordinance) stating that on 13.02.1996 on the specific request of the applicant the running financing facility was enhanced from Rs.50,00,000/- to Rs.75,00,000/-, which was required by the applicant for manufacturing and export of garments. That the applicant pledged with the respondent shares of various companies as collateral of the running finance facility. That upon verification the said shares were found to be fake and bogus as no such certificate numbers exist in the record of the companies. That as per the respondent the applicant has committed fraud by depositing fake and bogus shares and in the opinion of the respondent he has made himself liable for criminal proceedings.

3. A complaint was filed in 1997 before the Special Court, Offences in Banks at Karachi by the respondent, which was dismissed for non-prosecution on 18.09.1997. Thereafter an another complaint was filed by the respondent No. 01 in 2007 before the Special Court, however the same was withdrawn under the provision of Section 248 of the Cr.P.C on 20.01.2007, on the premise that as an employee of the Bank was also involved alongwith the applicant for committing the said forgery and fraud against the Bank and as the Bank has referred the matter to FIA for recording the statement of the witnesses and for investigation. The present Respondent sought permission to file a fresh complaint implicating one of their employees also, this application was allowed on the same date of filing of the said application by the learned Banking Court. In 2009 however the respondent Bank once again filed a complaint against the applicant before the Special Court for the aforesaid crime. However, the employee of the bank, who was intended to be implicated, was not implicated in the subsequent complaint. Thereafter the present applicant filed an application under Section 249-A Cr.P.C., which was converted into 265-K Cr.P.C., for acquittal and was dismissed vide order dated 22.01.2011. It is against this order that the present Criminal Revision Application has been filed.

4. The applicant is present in person and has submitted that he is totally innocent as the present complaint was made on the basis of the same allegations in respect of which two previous complaints were preferred by the respondent Bank out of which one was dismissed for non-prosecution and the other was withdrawn by the Bank itself hence the present third complaint was misconceived. He submitted that the matter is quite old and the bank had not produced any positive or concrete evidence of fraud and forgery against him and the order passed by the Banking Court on his application for acquittal by dismissing the same is illegal and uncalled for. While elaborating his submissions the applicant submitted that the fraud if any was committed by one Malik Jahangir Khan, a guarantor, with the connivance of staff of the Bank against whom apparently no action whatsoever has been taken by the Bank. As per the applicant he never went to the Bank for obtaining any running finance and he has also explained his position to the President of Bank and has clarified that the complaint made by the Bank against him is not correct as he had no role to play in the alleged fraud. He also submitted that FIA has already acquitted him and no charge has been found against him hence the complaint against him is simply baseless. In the end he submitted that he may be acquitted from the charges leveled by the bank by allowing this Criminal Revision Application.

5. Mr. Muhammad Arif Khan appeared on behalf of respondent No.1, however, no one appeared on behalf of respondent No.2. He submitted that there is no bar in law for making more than one complaints against any person who has committed fraud with the Bank and there is also no bar in the law with regard to the proposition that if one complaint has been dismissed or withdrawn no second complaint could be filed in this regard. He submitted that the Banking Court has given an exhaustive and detailed order for dismissing the application under Section 249-A Cr.P.C. filed by the applicant and the applicant has failed to point out any illegality in the said order. He further submitted that this Criminal Revision Application being devoid of any merits is liable to be dismissed. In support of his above contentions the learned Counsel has relied upon Abdul Rasheed Janjua Vs The State (2003 YLR 2211), Muhammad Amin Vs M. Ilyas Dadoo (2008 YLR 2824) and Zahoor Vs Said-ul-Ibrar (2003 SCMR 49).

6. In the interest of justice, we asked Mr. Saifullah, A.A.G., and Mr. Saleem Akhtar, A.P.G., sitting in the Court to assist the Court on this issue and they have assisted the Court quite ably and we appreciate their efforts in this regard.

7. We have heard the applicant, learned counsel representing respondent No.1 and the learned amicus curie and have also perused the record and the decisions relied upon by the Counsel representing the Respondent No. 01.

8. It is seen from the record that first complaint was made by the respondent against the applicant in 1997 but the same was not pursued and the same was dismissed for non-prosecution on 18.09.1997. Thereafter an another complaint was filed, which was withdrawn by giving a specific application, under Section 248 Cr.P.C., which is available at page-195 of the file, by mentioning that the complainant may be allowed to withdraw the complaint with the permission to file a fresh complaint by joining Miss Seema Zaman as co-accused in the said complaint. However it is quite strange on the part of the Bank that when they filed the third complaint the same was only against the present applicant. At this juncture we would like to quote herein below Section 248 & 249-A of Cr.P.C., which reads as under:-

“248. Withdrawal of complaint. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.

249-A Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence”.

9. Perusal of Section 248 Cr.P.C. reveals that a complainant at any time before the final order is passed make an application for withdrawal of his complaint and the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused. Meaning thereby the acquittal of the accused person is a sine qua-non of the said complaint and withdrawal of the complaint has to result in acquittal of accused baring re-trial. It is also to be noted that it is the discretion of the Magistrate to allow the complainant to withdraw the said complaint and the Magistrate even has the authority to refuse such withdrawal, keeping in view the facts of the case. It is noted from the record that the application for withdrawal of the complaint was a voluntary act on the part of the respondent Bank and filing of the subsequent complaint is nothing but the revival of the previous complaint, which was withdrawn by the respondent itself.

10. The Banking Court has allowed the withdrawal of the complaint on the specific application made by the Bank and the subsequent filing of the complaint on the identical issue, in our opinion, amounts to revival of the old complaint. As explained above withdrawal of complaint under Section 248 Cr.P.C. results in acquittal of the accused as in the said Section it has specifically been mentioned “shall thereupon acquit the accused” meaning thereby that it is mandatory upon the Magistrate/Judge, while allowing the said permission for withdrawal of the complaint, to acquit the accused keeping in view the facts of the case.

11. Now coming to the facts of the present case, the first complaint was filed in the year 1997 and after a lapse of two years another complaint was filed in the year 1999, which subsequently was withdrawn after a lapse of nine years. However yet another complaint was filed in the year 2009 and no plausible reason was given by the respondent for filing the third complaint except by stating that as the matter was being investigated by the FIA authorities hence the pervious complaint was withdrawn. However when the learned Counsel for the bank was asked to produce the report of the FIA the learned counsel candidly conceded that no such report is available with him.

12. We have further noted that the previous complaint filed in 1998 was withdrawn with the specific request that fresh complaint will be filed after joining Miss. Seema Zaman, an employee of the Bank, as co-accused in the complaint. However in the third complaint, i.e. the present complaint, which was filed after two years, the same was only against the present applicant. It is also seen that the complaint was filed on the report of the FIA however as per the applicant, which was not denied by the Counsel of the Bank, the FIA authorities have subsequently acquitted the applicant. However, it is quite strange on the part of the Bank that inspite of making categoric statement that they will implead Miss Seema Zaman as co-accused in the fresh complaint but have filed the third complaint only against the present applicant, which also creates doubt in this regard.

13. We were able to lay our hands on a decision given by Single Bench of the Lahore High Court in somewhat similar circumstances, in the decision reported as Mazhar Hussain Vs. The State (PLJ 1993 Cr.C. Lah. 16) wherein the learned Judge while deciding a Criminal Revision Petition observed as under:-

“Furthermore, the dismissal of the earlier complaint, on withdrawal by the complainant/Respondent No. 2, falls under the provisions of Section 248 Cr. P.C which is as follows:-

If a complainant, at any time before a final order is passed in any case under this chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.

As the perusal of the above Section makes it clear that a withdrawal of the complaint on the satisfaction of the Court results in the acquittal of the accused, and such an acquittal bars the retrial of the acquitted accused in accordance with the provisions of sub-section (1) of Section 403 Cr. P.C. as contended by the learned counsel for the petitioners. A perusal of the said section leaves no doubt about the relevancy of the said contention, and for reference it is being reproduced herein below:-

Section 403.-(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor one the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.

5. Therefore, pursuant to the above discussion, as the acquittal of the petitioners vide order dated 21.09.1986 whereby earlier complaint in respect of the same offences as is the subject matter of the instant complaint remains in force, the impugned order dated 11.01.1987 is not sustainable in law and is hereby set aside, and the present Criminal Revision Petition is accordingly allowed and disposed of”.

14. Article 13 of the Constitution of Islamic Republic of Pakistan also clearly stipulates that no person should be vexed twice. If the facts of the case are examined it will be seen that the applicant has been made the victim to once again face the trial after the withdrawal of the complaint by the Respondent, though for any reason. In our view the law in this regard is quite clear that no body should be punished twice for the same offence. Filing of the third complaint on identical facts amounts to implicating the applicant on a matter in respect of which the complaint filed by the bank was already withdrawn with a conscious application of mind.

15. We, therefore, in view of the above facts have come to the conclusion that the third complaint filed against the present applicant is wholly misconceived and illegal as firstly no plausible explanation has been given by the counsel appearing on behalf of the respondent Bank that how a complaint, after a lapse of two years, after the withdrawal of the second application has been filed and that too without adhering to the previous commitment made by the Bank and secondly in view of the fact that withdrawal of complaint under Section 248 Cr.P.C., if allowed, results in acquittal of the accused. Hence once the complaint is withdrawn for whatever reason and if so permitted results in acquittal of the accused, in our opinion, another complaint on identical facts filed by the respondent Bank after a lapse of considerable period, for which no plausible explanation has been furnished, is illegal and uncalled for. In view of what has been stated above this Criminal Revision Application is allowed and the impugned order is set aside.

16. Above are the reasons for our short order dated 14.03.2011 announced in Court after hearing the learned Counsel by which we have allowed the Criminal Revision Application and set aside the impugned order.

Judge

Karachi, the ____ March, 2011. Judge