' Brief facts of the case are that respondent No,1 filed criminal complaint against the petitioners alleging therein that respondent No,1 complainant along with her mother had rented Locker No,350 with the U.B.L. Garden Town Branch, Lahore. The said locker was broken by some unknown persons, hence case F.I.R. No,52 of 2004 was got registered by petitioner No,3, the Manager of the Bank.
Respondent No,1 filed complaint under sections 5 and 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 before the Special Judge, Lahore. The preliminary statement of the complainant was recorded on 26-9-2005. After recording of evidence the learned Special Judge vide the impugned order, dated 28-9-2005 held that there is sufficient A evidence for proceeding against all the respondents under sections 380/409, P.P.C., therefore, he summoned the petitioners through bailable warrants, hence this criminal revision.
2. It is argued by the learned counsel for the petitioners that the learned trial Court erred in law while ignoring the fact that the petitioners had no criminal mens rea to commit the alleged offence. The petitioners in discharge of their official duties had committed no negligence, as the matter was immediately reported to the police and the criminal law was set in motion to find actual culprits of the occurrence. Further argued that relationship between the complainant and the bank is that of licensee and licensor. It is categorically incorporated in clause No,6 of the agreement signed by the complainant/respondent with the bank that in case of any loss or destruction or damage to the locker all the property deposited in the locker would be at the risk and responsibility of locker holder. The bare reading of the above referred clause clearly depicts that neither the bank nor any employ could be held responsible for the loss or the theft as it is alleged by the complainant. It is further argued that instant complaint has been filed with mala fide intention just to harass and blackmail the bank employees. Further argued that the learned Special Judge Banking had passed the order mechanically without applying its mind to the facts of the case. From the statement of respondent no allegation of theft or criminal breach of trust has been specifically levelled against any of the three petitioners. Finally argued that the petitioner No,1 was functioning as Regional Chief Executive U.B.L. At the time of the alleged occurrence, whereas petitioner No,2 Mr. Nauman Ghani present Branch Manager could not be summoned and tried for the alleged offences due to the nature of their jobs and functions as they both did not had any direct connection with the alleged occurrence in the said branch at the relevant time. It is further submitted that no offence is made out against the petitioner No,3 as he acted in a diligent way and got registered a criminal case regarding the occurrence and there is no incriminating material against him.
3. Conversely, learned counsel for the respondent/complainant argued that the respondent took on rent Locker No,350 with U.B.L. Garden Town Branch, Lahore. Between the night of 24-1-2004 to 26-1-2004 Locker No,350 allotted to the complainant along with other Lockers Nos.133, 162, 183, 203, 287, 374 was broken by cutting those lockers through gas cylinders by some unknown persons and case F.I.R. No,52 of 2004 was reported with Police Station Garden Town, Lahore on the complaint of petitioner No,3, the then Manager. Further submits that being employees had domain over the property of the complainant and it was their duty as banker to protect and safeguard the interest of the complainant. Since they failed to perform their duties under section 409, P.P.C. They committed breach of trust vis-a-vis articles lying in the locker rented out to the complainant.
Further argued that after registration of the case F.I.R. The complainant time and again approached the petitioners and every time she was told that they are pursuing the case. Despite the oral and written repeated requests the petitioners tried to shift the responsibility stating that insurance company of security agency should bear the losses and not the bank. Further submits that the learned Special Judge after recording cursory statement of the respondent had rightly issued summons in the name of the petitioners to appear before the Court and face the complaint.
Finally argued that it was rightly observed that keeping in view the evidence laid by the respondent the Special Judge rightly summoned the accused through bailable warrants to appear before the Court to face the complaint. Finally argued that the petitioners have been summoned to face the complaint where they will get every right to put their defence. Relying on the judgment titled Tafiq A. Hussain Country Head American Express Bank and others v. Special Judge (Offences in respect of Banks) and others 2001 YLR 287, it is argued that the petitioners had committed criminal breach of trust and due to their negligence the complainant suffered heavy loss. Section 409, P.P.C. Is scheduled offence triable by the Special Judge.
4. We have heard the learned counsel for the parties and have gone through the complaint as well as the statement recorded by the complainant.
5. The only allegation levelled against the petitioners was to the effect that due to their negligence, the theft took place in U.B.L. Branch New Garden Town Lahore, where the lockers belonging to the bank were broken and valuable of the complainant amount of more than Rs,25,00,000 were removed. The bank official after recording the F.I.R. With Police Station Garden Town Lahore had slept over the matter and are showing negligence. They are not prosecuting and pursuing the matter with the police authority and despite the repeated demands of the complainant they are not pursuing the claim of the complainant before the police. The learned Special Judge Banking recorded statement of the complainant on 25-9-2005. She produced documents E,ch.P.1, copy of the F.I.R. Exh.P.2, letter, dated 27-1-2004 written by the bank to the complainant P.3. Then different letter, dated 17-2-2004, 15-4-2004, 17-4-2004 and 23-4-2004 Exh.P.4 to Exh.P.7 she also produced legal notice issued to the bank Exh.P.8 dated 26-1-2005 and also produced list of stolen articles Exh.P.9 and the weight and price of the golden ornaments Exh.P.10. By producing the above said documents she stated that the said golden ornaments belonging to her, her mother and sister were stolen from the bank lockers which were under the control and supervision of the bank and they have failed to take appropriate action, hence are liable for misappropriation of the same. By levelling general allegation she named Mr. Nauman Ghani, Manager, Mr. Zaeem Hassan Raja, Mr. Shoaib Qureshi and Mr. Nauman Hussain as accused of the complainant and requested that they may be tried and punished in accordance with law and Rs,25,00,000 may be recovered from them in the shape of costs. No specific role and allegation have been levelled against them that they are responsible for the stolen property and having failed to perform what was their lawful obligation, they are responsible for committing misappropriation under section 409, P.P.C. And theft committed in the bank under section 380, P.P.C. The said statement made by the complainant was not sufficient to involve the petitioners in this case, unless and until a specific allegation is levelled against them. It is admitted position that Mr. Nauman Ghani petitioner No,2 the present Manager was not posted in said branch on the day of occurrence, therefore, he cannot be held responsible for this incident. Mr. Muhammad Shoaib Qureshi EVP/G.M. Corporate Bank, Bank of Punjab was also not posted in the Branch and was not in any way connected with the alleged offence. Respondent No,3 Zaeem Hassan Raja complainant of case F.I.R. No,52 of 2004 was Manager on the day when the said occurrence took place. At the most he can be termed the custodian of the stolen property of the complainant when the said occurrence took place but no allegation is levelled against him that the said occurrence took place with his connivance or he is in any manner involved with the theft so committed in the bank. As per the F.I.R. The theft was committed by the unknown persons with the connivance of the guard who was posted on the day and used to sit inside the Branch. It prima facie transpires that the Bank Guard with the connivance of some unknown persons had committed the theft. The said guard was not employee of the bank. He was provided by the agency to whom the contract for providing the guard in the Branch of U.B.L. Has been awarded and the said agency which provides the security is responsible for the omission or act of its employee and not the employee of U.B.L. The cursory statement recorded by Special Judge Banking does not constitute any offence or connect the petitioners with the said occurrence in any manner. The case-law relied by the learned counsel for the respondent is not applicable to the facts and circumstances of the case.
' For what has been discussed above, this criminal revision is allowed and the impugned order, dated 28-9-2005 is set aside.