' MAULVI ANWARUL HAQ, J.- According to the contents of this writ petition, the petitioner-Bank was established in the year 1989 and the respondent No.l was appointed as its Chairman/Managing Director for five years. He remained employed as such till 24-3-1994 and was later retired on 7-8- 1994. Complaints were received as to the mis-management of the affairs of the bank by respondent No.l. A special inspection of the bank was carried out by the State Bank of Pakistan under the directions of the Federal Government and a report was filed by the Governor of the State Bank of Pakistan on 21-11-1994 (Annex-A). In the light of the said report, a case was got registered on the complaint of Asif Jamshed Shah, Managing Director of the petitioner-bank under sections 409/ 420/468/471/477-A/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, vide case F.I.R. No. 10 dated 20-9-1995 at Police Station F.I.A./SIU, Islamabad. The respondent No.l challenged the establishment and constitution of the Special Court (under section 3 of the Offences in Respect of Banks, (Special Courts) Ordinance, IX of 1984 (hereinafter to be referred to as the said Ordinance). W.P. No. 18293 of 1995 was dismissed on 20-12-1995 by this Court. ICA No. 13/96 along with several other writ petitions was decided by a Full Bench of this Court on 20-7-1996 and sections 3 and 4 of the said Ordinance were declared to* be unconstitutional. (This judgment is reported as PLD 1996 Lahore 542). CPLA No. 1832- L of 1996 was filed by the petitioner and leave was also granted but later the appeal was withdrawn. Pursuant to the said judgment of this Court, section 3 of the said Ordinance was substituted vide Act XVI of 1997. However, section 4 continued on the Statute book as it was. The respondent No.l then filed W.P. No. 12687 of 1995 for quashment of the said F.I.R. But the same was dismissed by this Court on 8-10-1995 (Annex-C). ICA No.414 of 1995 was also dismissed on 24-10-1995 (Annex-C/1). There was a ehahge of Government and the respondent No.l filed an application before the Prime Minister of Pakistan for an inquiry into the allegations made against him. The matter was referred to the Chief Minister, Punjab, who constituted a Fact Finding Committee comprising of Mian Sadiq Ikram, a retired Honourable Judge of this Court and Mian Muhammad Ashraf, a sitting Director of the petitioner-bank. A report was filed on 29-10-1997 (Annexs-D & D/l) exonerating the respondent No.l.
2. On 31-10-1997 the respondents filed applications under section 249-A, Cr.P.C. Before the respondent No.5 (the learned Judge Special. Court) praying for acquittal (Annex-E). The Federal Government in the Ministry of Law, Justice and Parliamentary Affairs prayed for withdrawal of the case. However, the learned Judge, Special Court, proceeded to 'decide the applications in the light of the material available on record. Consequently, vide the impugned judgment dated 23-2-1998 the respondents were acquitted (Annex-F).
3. This writ petition has been filed seeking a declaration that the said judgment of acquittal is without lawful authority and is illegal.
4. Mr. Naeem Sahgal, Advocate/ learned counsel for the petitioner contends that section 4 of the said Ordinance having been declared to be unconstitutional by this Court, the learned Special Court was not having the jurisdiction, to try the said offences as the entire Schedule was set aside by this Court with reference to section 4 of the said Ordinance. Relies on the said judgment of this Court reported as PLD 1996 Lahore 542. Further contends that the application could not have been filed before the framing of the charge. Relies on the case of Syed Anwar Ali Shah v. Yar Muhammad and 3 others (1986 PCr.LJ 1278). Proceeds to argue that the material particularly the affidavits of the prosecution witnesses, as also the inquiry report, considered by the learned Special Court could not have been considered as these did not form part of the record which for purposes of section 249- A, Cr.P.C. Only means the papers filed by the Police. He relies on the case of Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore (PLD 1997 SC 275). Complains that the affidavits could not have been considered without subjecting the deponents to cross- examination. Relies on the case of The State v. Saleem Khan (PLD 1985 Lahore 345). According to the learned counsel, all the admissions noted in the impugned judgment are attributed to Mr. Zahid Malik, Advocate, but according to him he was not an Advocate of the petitioner-bank rather he was one of the P.Ws. According to the learned counsel the dismissal of W.P. No.12687 of 1995 for quashment of the case would imply that a prima facie case was there against the respondents.
Then argues that although the complainant of the case i.e. Syed Asif Jamshed Shah was not available, still Syed Akhtar Raza P.W. Had affirmed the contents of the complaint and he should have been examined. Filially, argues that the request for the withdrawal of the case ought to have been allowed and since a charge had not been framed the respondents would have been discharged. Summing up his arguments, he explains that as a result of the impugned judgment, the respondent No.1 has filed a suit for recovery of Rs.250 million against the petitioner-bank as damages for malicious prosecution.
5. Mr. Sherjeel Adnan, Advocate/ learned counsel for the respondents, on the other hand, objects to the maintainability of the writ petition. According to him, no appeal or revision is provided in the said Ordinance against as order of acquittal and right of appeal has only been given to an accused. The precise contention is that even in an appeal against acquittal, the Superior Judiciary has advised the Courts to be cautious as the acquittal adds to the already existing presumption that every one is innocent unless proved to be guilty. He cites the cases of Messrs Habib Bank Ltd. v.
Presiding Officer, Special Court (Offences in Banks), Karachi and 2 others (1989 PCr.LJ 417) and Muhammad Sadiq v. Anver Majeed and another (1989 PCr.LJ 1223). According to him, the impugned judgment does not suffer from any defect or infirmity enabling this Court to exercise its constitutional jurisdiction in this judicial review. He has drawn our attention to some interim orders passed by the learned Special Court and more particularly to the reply filed by the petitioner-bank itself to the application under section 249-A, Cr.P.C. According to the learned counsel for all intents and purposes in the reply a prayer was made for acceptance of the application. According to him, the affidavits were provided by the bank itself while the report of the Fact Finding Committees was provided by the Prosecutor. With reference to the said Full Bench judgment, he explains that section 4 was never questioned and only section 3 was questioned which was declared to be unconstitutional.
6. Mr. M. Naeem Sahgal, Advocate, rejoins to state that in the absence of any other remedy against the impugned judgment, the writ petition is maintainable and since he has demonstrated that the impugned judgment has been rendered without lawful authority, the writ petition is competent.
7. We have examined the records of the learned Special Court, with the assistance of the learned counsel for the parties. Before proceeding further, we deem it appropriate to deal with the contentions of the learned counsel for the parties with reference to the Full Bench judgment of this Court in the case of Imran v. Presiding Officer, Punjab Special Court No.VI, MuRan and 2 others (PLD 1996 Lahore 542). We have examined the said judgment. Several writ petitions and the said ICA No.13/96 filed by respondent No.1 were decided vide the said judgment. We deem it appropriate to reproduce hereunder para-2 of the said judgment:- "(2) The first set of petitions was filed to challenge the vires of sections 3 and 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which provide for the establishment and constitution of the Special Courts. The petitioners in the second set of petitions have challenged the establishment, composition and constitution of Special Courts under section 3 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984."
' It will, thus, be seen that sections 3 and 4 of the Suppression of Terrorist Activities (Special Courts)
Act, 1975 on the one hand and section 3 of the said Ordinance, 1984 on the other were questioned before this Court. The entire discussion in the said judgment which is spread over about 30 pages pertains to the said provisions of law. However, in para12 of the judgment, somehow or the other it came to be recorded that sections 3 and 4 of the said Ordinance, 1984 and the said other provisions are declared unconstitutional. However, the reasons recorded were that these provisions are being declared so as these erode to the independence of the Judiciary and the notification appointing the presiding officers to these Special Courts are quashed.
8. We may note here that in para-9 their lordships, reproduced the two statutes, which were under challenge. Whereas sections 3, 4 and 4-A of the Suppression of Terrorist Activities (Special Courts)
Act, 1975 were reproduced, only section 3 of the said Ordinance, 1984, was reproduced. We may further note here that section 3 of the Ordinance, 1984, provides for the establishment of the Special Courts which section has, admittedly, been now substituted after the said judgment and admittedly the learned Special Judge who passed the impugned judgment has been appointed in accordance with the said amended provision. Section 4 of the said Ordinance prescribes the jurisdiction of the Special Court and this primarily is that the offences mentioned in the schedule are to be tried exclusively by a Special Court, which means. a Special Court constituted under section 3. We therefore, do find that the said section 4 was neither considered nor was declared as such to be unconstitutional and what was declared to be unconstitutional was the mode of appointment of the presiding officers of the Special Courts which defect has since been removed in the light of the said judgment. The said first contention of the learned counsel for the petitioner is accordingly, rejected.
9. Coming to the other contentions noted above, the application (Cr. Misc. No.134 of 1997) under section 249-A, Cr.P.C. Was filed on 31-10-1997. This application came up before the learned Special Judge on 14-11-1997 when the contentions of the learned counsel for the respondent No.1 were noted and a notice was issued for 21-11-1997. On 21-11-1997 the case was taken up, inter alia, in the presence of Mr. Khawar Ikram Bhatti, Special Public Prosecutor, who sought time to file a reply and it was also ordered that a representative of the Bank of Punjab fully conversant with the facts of the case to appear in Court and to file a reply on behalf of the petitioner. The matter was then taken up on 9-12-1997 when it was noted that the Bank of Punjab has filed written reply to the application under section 249-A, Cr.P.C. We may note here that this reply was filed by the petitioner-Bank through its General Manager. It bears his signatures and the seal of the petitioner. The affidavits of several P.Ws. Named in the said order were filed by the bank. It is stated in the order that all the deponents are present and on query by the learned Judge they have confirmed that the affidavits have been sworn by them. The order further narrates that the written reply has also been filed by the State and that the prosecutor has produced an attested copy of the report dated 21-10-1997 of Mr. Justice (Retd.) Mian Qurban Sadiq Ikram and Mian Muhammad Ashraf.
10. We have ' examined the said application and its reply by the bank. We find that each and every para of the said B application was admitted. It was admitted that the affidavits have been sworn by the officials of the complainant-bank which were cited as prosecution witnesses. It was also affirmed that the said witnesses appeared in the Court on the said date and confirmed the contents of the affidavits. The factum of the said report having been made by the said persons was also admitted. It was also admitted that the Governor State Bank of Pakistan has issued a letter dated 5-6-1994 that no irregularity was found with the bank. In the end, it was stated that the probability of conviction or otherwise is a matter of judicial discretion based upon the record before the Special Court. It will, thus, be seen that the material relied upon by the learned Judge was provided to him either by the petitioner-bank itself or by the prosecutor. The said contentions of the learned counsel pointing out the said irregularities hardly matter and that too in these proceedings under Article 199 of the Constitution. We have no manner of doubt in our mind that in the said glaring circumstances apparent on the face of the record, the learned Judge of the Special Court, cannot be said to have acted without lawful authority while concluding that there is no chance of the conviction of the respondents in the said case before him.
11. However, the matter does not end here. An examination of the records of the proceedings before the learned Special Court does give an impression that after the registration of this case and probably as a result of the change of Government the tables turned and it appears that every one connected with the prosecution including the complainant-bank was head over heels to state that the respondents are innocent. We definitely get this impression that in this particular case the prosecution/ complainant and the accused/respondents ultimately became, what is, called a case of hands in glove. The contents of the writ petition and the submissions made by the learned counsel for the petitioner also give the impression that had the suit for damages not been, filed by the respondent No.1, the writ petition would never have been filed. It further appears that the mutuality of accord reached between the prosecutor and the accused did not at all cater for filing of a suit for damages by the respondent No.1 as a result thereof. No case for exercise of constitutional jurisdiction stands made out. However, at the same time, we feel constrained to observe that the learned Judge dealing with the civil suit for damages filed by the respondent No.1 shall remain absolutely uninfluenced by any observations made by the learned Special Court in the impugned judgment or any observations occurring in our judgment. With these observations, the writ petition is dismissed but without any orders as to costs.
12. The records of the learned trial Court be remitted back immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.