The Criminal Complaint Bearing No, 1 of 1998 was filed by Complainant Mr. Muhammad Ishaque Mallal, Registrar of Modaraba Companies and Modaraba Corporate Law Authority against three accused persons namely (1) Mr. Habibullah, Chief Executive of First Premier Modaraba (2) Mr. Tariq Malik, Director and (3) Ms. Talat Faridi Director. The then Chair Person, Modaraba Tribunal on 18.1.1998 took cognizance against the above mentioned accused persons on the Criminal Complaint Bearing No, 1 of 1998 filed against them by the Complainant/Registrar Mr. Muhammad Ishaque Mallal. During the pendency of the trial the Accused Habibullah absconded away and was declared proclaimed offender.
Briefly the prosecution story as per facts disclosed in the Criminal Complaint are that the accused persons being Chief Executive and Directors of the First Premier Modaraba had submitted (i) annual accounts for the year ending on 30.6.1994 late by one month and 9-days to the Registrar, Modaraba (ii) accused persons did not file annual accounts for the year ending on 30.6.1995 and 30.6.1996 which are violation of Rule 9 of the Modaraba Rules, 1981 and Section 14 of the Modaraba Ordinance, 1980. (iii) used persons had transferred the management of First Premier Modaraba to another party viz Messrs. Al-Safa Dyeing which is violation of Section-17 of Modaraba Ordinance, 1980 and (iv) Accused persons had also not maintained the accounts property violating statutory provision of the Modaraba Ordinance, 1980 (v) they had taken loan from the funds of First Premier Modaraba violating Section-17(2) of the Modaraba Ordinance, 1980 and also (vi) that accused have defrauded the certificates holder and committed breach of trust by misusing the funds of the Modaraba and thus have committed offences punishable under Sections 31 and 35 of the Modaraba Ordinance, 1980.
The Court on 14/5/2001 framed Charge against Accused persons Tariq Malik and Ms. Talat Faridi for committing offences punishable under Sections-31 and 35 of the Modaraba Ordinance, 1980.
The Complainant has examined himself and one witness Abdul Waheed the person who has submitted his Report and on the basis of his Report the Registrar, Modaraba Companies filed the Criminal Complaint.
The Accused Ms. Talat Faridi in her Statement under Section 342 Cr.P.C. has denied the allegations leveled against her by the Complainant side and stated that she has not committed the allegations levelled against her in the Complaint/Charge. She has further submitted that she has resigned from the post of Director on 14.5.1994. According to her Statement she was not active Director and therefore was not in knowledge what the management was doing, that she has not taken any loan. She is innocent and is entitled for acquittal. The accused Ms. Talat Faridi did not examine herself on oath.
The accused Mr. Tariq Malik in his Statement under Section 342 Cr.P.C. has denied the allegations levelled against him in the Complaint. He has stated that he has submitted his resignation on 2.2.1992 and thereafter he was no more Director of the First Premier Modaraba. The Accused Mr. Tariq Malik in his statement under Section .342 Cr.P.C. has further stated that he had not taken any loan nor he has knowledge whether any Director had taken loan. According to the Statement of Accused Mr. Tariq Malik he is innocent and has been falsely involved with mala fide intention in this Criminal Complaint. The Accused Mr. Tariq Malik in his Statement has produced resignation Exhibit D/5 and Postal Receipt as Exhibit:6. The Accused Mr. Tariq Malik in his defence has examined himself on oath and in Statement on oath has stated that he was sponsor Director in Modaraba at the time of Floating and on 2/2/1992 he tendered his resignation. He has further submitted that after his resignation the submitted accounts for the year ending of 30.6.1992 only showing three Directors and his name was not published-as Director.
According to the Statement of Accused Tariq Malik he has not taken any part in the affairs of the company as Director and has resigned on 2.2.1992 and the allegations levelled by Complainant against him on the basis of which Charge was framed are false and that he is innocent and is entitled for acquittal accused Tariq Malik did not examine DW Rahat Aziz though he has given the name of the Witness Rahat Aziz in his Statement on oath.
Points for determination.
1. Whether Accused persons Tariq Malik and Messrs. Talat Faridi have committed the allegations leveled by the Complainant against them?
2. What offences, if any, accused persons have committed?
3. What should the Order be?
My findings on the above points along with reasons are as under:-- The advocate Mr. Aamir Raza Naqvi for accused Tariq Malik in his arguments has submitted that the Complainant side in support of the allegations levelled against the accused persons has examined Complainant Mr. Muhammad Ishaque Mallal/Registrar, Modaraba Companies and Modaraba Corporate Law Authorities and one witness Abdul Waheed on whose Report the Complaint was filed. It has further been submitted by the Aamir Raza Naqvi Advocate for accused Tariq Malik that so far as accused Tariq Malik is concerned it has been brought on record that accused Tariq Malik tendered his resignation on 2.2.1992 from the Directorship of Premier Modaraba (Private) Limited whereas the allegations disclosed in Charge are of after such date viz 2/2/1992. It has been pointed out that accused Tariq Malik in his defence has claimed that he has nothing to do with the Modaraba Company after date of his resignation viz 2/2/1992. It has also been pointed out that main thing is to be considered against accused Tariq Malik is whether there is mense rea or intention of accused to commit the alleged offences or not? It has been pointed out that Complainant has failed to produce any evidence or document to show that accused Tariq Malik has obtained any loan from the Modaraba Company after it was floated and further there is no evidence on record to connect accused Tariq Malik regarding any monetary benefit obtained by accused Tariq Malik. It has also been submitted that accused Tariq Malik has produced his resignation (Exhibit D/5) and Postal Receipt (Exhibit D/6) to prove that he has tendered resignation.
It has also been submitted that annual accounts for the year en ding 30.6.1992 (Exhibit D/8) and also for the subsequent years (Exhibit D/9 to D/11 1993 and 994) clearly show that accused Tariq Malik has not been shown as Director of the Modaraba (Exhibit D/13) and the Office Note of Chief Executive of absconding accused Habibullah Niazi is clear regarding the acceptance of the resignation tendered by the accused Tariq Malik. It has also been pointed out that Exhibit D/12 is another information to the fact that accused Tariq Malik has resigned. The advocate Mr. Aamir Razaq Naqvi in his arguments further submitted that present Criminal Complaint has been filed on the basis of Report of PW Abdul Waheed and the said witness Abdul Waheed in his evidence before the Court has disclosed in his Report (Exhibit 9/7) that it was one man show of Habibullah Khan Niazi and further it is clear from the Report that accused Tariq Malik claimed to have been resigned and never received any notice and never attended a single meeting of Board that in the whole Report no role ha been attributed to accused Tariq Malik. It has also been pointed out that Complainant has failed to bring any material on record to show that there was any mense rea on part of accused Tariq Malik or there was any intention on the part of accused to commit the offences alleged against him. That in Criminal matters mense rea is an essential factor/ingredient and in the absence of proving any mense rea no conviction can be awarded. According to the arguments of learned Advocate Mr. Aamir Raza Naqvi of accused Tariq Malik the Complainant side has badly failed to bring on record any material or evidence against the accused Tariq Malik to connect him with the alleged offences/Charge and therefore, accused is entitled for acquittal. In support Mr. Aamir Raza Naqvi advocate relied on rulings PLD 1967 Supreme Court page-1, PLD 2005 Supreme Court page-63.
Mr. Saalim Salam Ansari advocate for the lady accused Talat Faridi in his arguments has submitted that an inquiry into the affairs of First Premier Modaraba was conducted upon instructions of Registrar, Modaraba Companies and Modarabas, Corporate Law Authorities by Chartered Accountant Mr. Abdul Waheed (P.W) who has submitted his report on record as Exhibit-
7. That on the basis of the above said Report the instant Criminal Complaint was filed in Court. It has been pointed out that Director Mr. Riffatullah Siddiqui to whom Show Cause Notice was issued by the Registrar, Modaraba was not made as one of the accused so also Notice was issued to Chairman, Athar Hussain by the Registrar, Modaraba but Athar Hussain was also not made accused reasons best known to Complainant. It has further been submitted that Inquiry Report dated 2.11.1995 made by P.W. Abdul Waheed confirmed the resignation dated 14.5.1994 of the lady accused. It has also been pointed out that in the Report nothing was against lady accused Talat Faridi on the other hand the Report confirms that lady Accused Talat Faridi resigned on 14/5/1994 before the period under inspection from 1/7/1994 to 30/6/1995 and as per report lady accused was neither physically available at factory nor her involvement in the administration and maintenance of Account. It has also been submitted that Complainant Muhammad Ishaque Mallal in the cross- examination has deposed that accused Talat Faridi had not taken any loan, and all the allegations/charges are after the date of resignation of the lady accused. According to the arguments of Mr. Saalim Salam Ansari resignation of Talat Faridi was in the knowledge of Secretary Rahat Aziz who has confirmed the resignation submitted by the accused Talat Faridi which was accepted by Chief Executive absconding accused Habibullah. The Complainant in his evidence before the Court has deposed that he has no knowledge regarding involvement of accused Talat Faridi in the affairs of Modaraba after 14/5/1995 which is ample evidence of the non-involvement of accused Talat Faridi in the alleged offences. That under Section 33 of Modaraba Ordinance, 1980 no criminal action can be taken against the Director for the allegations which taken place after the resignation period viz. 1.7.1994 to 30.6.1995. In support the advocate Mr. Saalim Salam Ansari relied on rulings Company Cases Madras High Court page 1977 September 24, 1976, Madras High Court September 5, 1997 page 613.
The Complainant advocate Mr. S.M. Aamir Naqvi in his arguments has submitted that the evidence brought on record in support of the facts disclosed in the Criminal Complaint is not enough to connect the accused with the alleged offences. It has been submitted that even Complainant side has failed to bring on record any evidence or material against accused Tariq Malik and lady accused Talat Faridi which regard to the mense rea which is basic ingredient to support the allegations leveled against them in the Criminal Complaint. The learned Complainant advocate further in his arguments has submitted that even other wise the evidence brought on record against accused Tariq Malik and lady accused Talat Faridi is not sufficient to prove that they have committed the alleged offences.
I have considered the arguments advanced before me by the parties advocates also perused the cited rulings and the entire evidence brought on record by the parties. I would like to mention that the Criminal Complaint was filed by the Complainant/Registrar Muhammad Ishaque Mallal against the accused persons on the basis of Inquiry Report submitted by the Chartered Accountant Abdul Wahid who was also examined by the Complainant as PW-1 in this Criminal Complaint. From the evidence of Complainant Muhammad Ishaque Mallal and PW Abdul Wahid it appears that accused Tariq Malik has resigned after few months of the First Premier Modaraba coming into existence and further accused Tariq Malik did not attend a single meeting of the Board nor took any active part as a Director of First Premier Modaraba further accused Tariq Malik had not taken any loan or achieved any monetary benefit from the First Premier Modaraba. I would further like to mention that lady accused Talat Faridi also had not taken any active part and had not taken any loan and she was no active in the management/affairs of the Modaraba. The lady accused has submitted her resignation on 14/5/1994 whereas the allegations/offences alleged in the criminal Complaint against her/lady accused are of after period. Further from the evidence on record it appears that neither accused Tariq Malik nor lady accused Talat Faridi involved in the administration and maintenance of account. The Report of Chartered Accountant PW Abdul Wahid is very clear regarding the involvement of Chief Executive absconding Accused Habibullah Khan Niazi to be one man show because the Board of Directors were totally in effective.
It is pertinent to mention that from the Report and the evidence of Complainant and PW-1, the Chief Executive absconding Accused Habibullah Khan Niazi is the person who was running the First Premier Modaraba as one man show, even Board of Directors were totally in effective. In the light of the evidence on record one can safely say that the Complainant has failed to prove the allegations levelled against the accused Tariq Malik and lady accused Talat Faridi beyond reasonable doubt and this is the fit case for granting benefit of doubt to accused Tariq Malik and lady accused Talat Faridi, with the result I give benefit of doubt to accused Tariq Malik and lady accused Talat Faridi hence they are acquitted for the offences being charged with. The accused Tariq Malik and Talat Faridi are on Bail their Bail Bonds stand discharge.
Pronounced, in Court, this 3rd day of April, 2006.