MUHAMMAD ALI MAZHAR, J.---By filing the present Criminal Miscellaneous Application, the applicant has impugned the Order dated 18-3-2009 passed by the learned Special Judge, Anti-Corruption (Provincial) Hyderabad in Special case No,7 of 2006, whereby the application under section 249-A, Cr.P.C., filed by the applicant was dismissed.
2. The brief facts of the case are that on the basis of an inquiry conducted on the complaint of Nizar Ali, Chairman of Mubarak Cooperative Society, Hyderabad, complainant Bashir Ahmed Shah.
Inspector ACE Hyderabad on 14-2-2006 has registered a case against the applicant on the charges of misappropriation and embezzlement of the funds of the society and so also cheating the members of the society in the F.I.R. The complainant has mentioned the following charges:--
(1) Record of the society was found mess and in worst position. As per set procedure, all the ledgers were to be closed every half year, on last dates of June and December and got to be reopened/written afresh showing balance of every account. This was not done deliberately as the figures were written with pencil instead of ink.
(2) Moula Bux with collaboration of audit officers submitted bogus balance sheets, which were accepted/approved by the auditors and placed the society in audit category "A".
(3) On 19-8-2005, Moula Bux and Wazir Ali left the society without informing the concerned authorities and did not turn back.
(4) While checking cash in hand and cash in bank, the same was found empty, whereas he had issued cheques which were dishonoured by the drawee bank being no balance in the society's account.
(5) In the balance sheet, he has reflected a figure of Rs,2000 (M) as advance against flats, whereas there is no existence of such flats.
(6) Moula Bux has availed multiple loans to the extent of Rs,23,787 (M) without proper securities, in the names of his family members and friends even formalities of documents were not got completed, charge forms and the necessary documents were not obtained.
(7) Moula Bux had issued deposit receipts in the name of his late mother-in-law which receipts were got en cashed by his wife Mrs, Kulsoom Moula Bux on 19-8-2005, entries of these deposit receipts were made in the books by Wazir Ali son of Inayat Ali and Moula Bux.
(8) On 3-10-2005 Moula Bux opened a bank locker (which is operated by him singly). The locker was opened in presence of convener, myself and Bank Manager of U.B.L. And other respectable persons of the community, the inventory was prepared and it was found that 3(three) packets of gold, one in the name of Mrs, Kulsoom Moula Bux and two others against which gold loans were allowed, were missing. Mr. Moula Bux confirmed that he has delivered the gold to his wife without adjusting the gold loan availed against it. This liability is still outstanding in the books.
' During enquiry together with recording statements of the concerned, the record of the society was got checked from the Senior Auditor of this Establishment, who gave his report briefed as under:--
(i) The record shows that Mr. Moula Bux Managing Director taken loan of Rs,11,815,042 and others including his family members amounting to Rs,78,43,312 from Mubarak Cooperative Society. The same is lying outstanding/recoverable against him and others including his family members as yet.
(ii) Loan amount of Rs,166976/- appearing in the name of Mrs, Kulsoom wife of Moula Bux is still recoverable from her.
(iii) Doubtful payment of Rs,1698272 was made to Mrs, Kulsoom wife of Moula Bux and no reason was mentioned in vouchers.
(iv) Wazir Ali son of Inayat Ali drawn over draft amounting to Rs,2646782 plus interest Rs,1701190 totalling to Rs,43,47,972. The same is still recoverable from him, likewise a doubtful payment of Rs,52,84,980 made to M.A. Khoja and Haider Ali.
(v) Rs,1026751/- were encashed through call deposits in the name of MRs, Khatija mother-in-law of Moula Bux though she expired long long ago. Moula Bux also paid Rs,3222485 to Zulfiqar Ali which is still recoverable.
' The senior auditor further reports that also the staff of the office of Registrar Cooperative Societies obtained a total loan of Rs,8,43,804. The special auditor being a govt. Servant was responsible to maintain check and balance on the business of society to save the public that appeared to be liable on account of conducting audit of the society accounts as per wish of the management."
3. On the basis of aforesaid inquiry conducted on the Complaint No,547 of 2005, the Inspector Anti- Corruption Bashir Ahmed lodged the above F.I.R. No,3 of 2006 on 14-2-2006 under sections 406, 409, 420, 477-A and 34, P.P.C. Challan against the applicants was submitted on 29-9-2008. During pendency of the case, the applicants had moved an application under section 249-A, Cr.P.C., which was dismissed vine impugned order dated 18-2-2009.
4. Heard the learned counsel for the applicants and learned A.P.G. For the State.
5. In the quashment application, the learned counsel for the applicant has argued that the F.I.R. Has been lodged without the consent of Registrar Cooperative Society Hyderabad and the Prevention of Corruption Act 1947 is not applicable on the private society. The main thrust of the argument was that the Mubarak Cooperative Credit Society Hyderabad is a private society, therefore, no F.I.R. Can be registered against its officials by the Anti-Corruption Department. While arguing the matter learned counsel for the applicant has referred to sections 63 and 70-A of Cooperative Societies Act, 1925, which are reproduced as under:-- "63. Cognizance of offences.---No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing made by the Registrar or by a person duly authorized, for the purpose, by him: ' Provided that cognizance of an offence under subsection (2) of section 62-A may be taken even otherwise than on such complaint.
"70-A. Bar of Jurisdiction.--(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act---
(a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator, a society, a financing Bank, a Cooperative Bank or any other person as empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine;
(b) the validity of anything done or an order passed by the Provincial Government, a society, a Financing Bank, Co-operative Bank, the Registrar or any other person referred to in clause (a) under this Act or the rules and bye-laws framed thereunder, shall not be called in question in any manner whatever before or by any Court or other authority whatsoever; and
(c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a Society, a Financing Bank, a Co-operative Bank, the Registrar or any other person referred to in clause (a).
(2) The provisions of subsection (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Cooperative Societies (Amendment) Ordinance, 1966, comes into force, and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in subsection (1), shall stand vacated and be without any force."
6. According to the learned counsel for the applicants the learned trial Court had no jurisdiction to take the cognizance in the, matter against the applicants, as the cognizance was only possible on complaint in writing made by the Registrar or by a person duly authorized for the purpose by him.
This contention has no force as the language of section 63 of Cooperative Societies Act, 1925 (hereinafter referred to as "the Act") is very much clear that section 63 of the Act only provides for the cognizance of offences punishable under the Cooperative Societies Act, 1925 and it does not give general amnesty or immunity to the officers of Cooperative Societies not to be tried under any other law. Similarly, the bar contained under section 70-A of the Act is only applicable to the matters in which the Provincial Government, the Registrar or his nominee, any arbitrator or liquidator, a society, a financing Bank, a Co-operative Bank or any other person as empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine. It is nowhere mentioned, either under section 63 or 70-A of the Act, that the officers of cooperative societies cannot be tried under the provisions of P.P.C., in case, they commit any offence in discharge of their duties. At the same time, it is very advantageous to point out that under section 65-B of the Cooperative Societies Act, 1925, every officer of a society, including a Cooperative Bank, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code. For the ready reference section 65-B of Cooperative Societies Act, 1925 is reproduced as under:-- "Officers of societies to be public servants.---Every officer of a society, including a Co-operative Bank, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code".
7. The learned counsel for the applicant in support of his arguments has relied upon a judgment of this Court reported in PLD 1992 Karachi 167. In fact this judgment dose not support the plea of applicant rather in this judgment, the learned single Judge of this Court held that section 70-A oust the jurisdiction of all Courts to adjudicate upon a matter which the Provincial Government and Forums indicated therein are empowered to dispose of or to determine by or under the Cooperative Societies Act, 1925. In this judgment the learned single Judge has also held that officers of the society are public servants within the meaning of section 65-B of Cooperative Societies Act, 1925 and they can only be prosecuted before a Special Judge, Anti-Corruption in respect of the offences specified in the Schedule and since in this matter the cognizance was taken by the Magistrate for the scheduled offences therefore, the proceedings were ordered to be quashed. But in this case, the matter is being tried by a competent Court and cognizance has been rightly taken by the Anti-Corruption Court, keeping in view the provisions of section 65-B of the Act.
8. Learned counsel for the applicants also relied upon another judgment reported in 1987, PCr.LJ 344, in which the learned single Judge of this Court observed that the sanction to prosecute was not in accordance with law, therefore, the proceedings were quashed. Even otherwise the facts mentioned in the above case are distinguishable, as this judgment came into existence prior to the amendment made in the Cooperative Societies Act by virtue of Act-I of 1992.
9. In another judgment reported in 1989 ALD 519(2), the Divisional Bench of this Court has also held that a previous sanction of the Registrar is required only for the offences under the Act and prosecution for the offences under Anti-Corruption Act does not require previous sanction of Registrar. Similar view was taken in another judgment reported in 1990 MLD 1060, whereby, it was held that the officers of the society are public servants, thus any act of corruption and misappropriation by them will fall within the ambit of provisions of section 5 of Prevention of Corruption Act 1947 and the bar contained in section 63(3) Cooperative Societies Act, 1925 requiring sanction of Registrar before proceeding against the officers of Cooperative Society had no bearing. Even otherwise the provision of sanction as provided under subsection (3) of section 63 of the Act is not at all relevant at this stage, which was subsequently amended by virtue of Act-I of 1992 and provision of sanction was omitted, this fact has already been mentioned by the Honourable Supreme Court in the judgment reported in 1996 SCMR 654.
10. In the judgment reported in 1996 SCMR 654, the Honourable Supreme Court has already taken into consideration section 63 of the Act and clearly held that jurisdiction of ordinary Courts to take cognizance of an offence has been ousted only in respect of offences which are punishable under the Act. It has been further held that in respect of offences punishable under any other law, the jurisdiction of uidinary Court to take cognizance is not at all affected by section 63 of the Act. Since the applicants are public servants within the meaning of section 65-B of the Act, therefore, they are rightly being tried by the Anti-Corruption Act. The definition of officer, as mentioned under section 3(d) of the Act, provides that "officer" includes a Chairman, Secretary, Treasurer, Member of Committee or other persons empowered under the rules or under the bye-laws of a society to give directions in regard to the business of such society.
11. In the judgment reported in PLD 1988 Lahore 802, it has been held the word "officer" would include all incumbents of offices high or low irrespective of their status. Co-operative Bank employees of all categories to be considered as officers for purposes of S.65-B of the Act and by virtue thereof would be deemed to be public servants within the meaning of section 21, P.P.C. The cases of embezzlement and misappropriation registered against Cooperative Bank employees of any category are triable exclusively by the Special Judge. The word "includes" is used as a word of enlargement and ordinarily implies that something else has been given beyond the general language. The definition of the term "officer" is neither exhaustive nor restrictive but it is very wide and extensive. Therefore, the applicant No,2, who is alleged to be a clerk, is also included in the definition of the officers. The learned trial Court while passing the impugned order rightly considered the provisions of Cooperative Societies Act and after due consideration dismissed the application with sound reasoning.
12. The grounds usually available under section 561-A, Cr.P.C. For quashing criminal proceedings, inter alia, are (a) jurisdictional defect. (b) patent violation of same provisions of law, (c) the allegations as contained in the complaint or F.I.R. Even if believed, no case is made out and the continuation of the proceedings would amount to sheer abuse of process of Court, (d) when an endeavour is made to enforce civil liability through the machinery of criminal Court and (e) in certain cases, inordinate delay amounts to abuse of process of Court. The determination of the guilt or innocence of accused depends upon the totality of facts and circumstances revealed during the trial. Therefore, exercise of power under section 561-A, Cr.P.C. By High Court at pretrial stage cannot further the ends of justice if undertaken to determine whether the prosecution evidence likely to come on record is true or false. The allegations of corruption, misappropriation, embezzlement and other irregularities, allegedly committed by the accused persons in the affairs of society, are very serious charges and huge public money is also at peril.
Unless a full-fledge trial is conducted against the accused persons, their innocence or guilt will not be established. The learned counsel for the applicant has failed to make out any case of quashment of F.I.R./proceedings and also failed to demonstrate or point out any abuse of process of the Court, which may deserve any intervention of this Court under section 561-A, Cr.P.C.
13. The Honourable Supreme Court in a judgment, reported in PLD 2007 Supreme Court 189, has held that power as conferred upon High Court under section 561-A, Cr.P.C. Is required to be exercised in exceptional cases, where it is satisfied that continuation of proceedings complained of would amount to gross abuse of process of Court or that it is absolutely necessary to exercise inherent powers to secure the ends of justice. Such exceptional powers must be exercised sparingly with utmost care and caution and it should not be exercised in casual and cursory manner. Inherent jurisdiction as conferred upon High Court pursuant to the provisions as enumerated in section 561- A, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure is available.
Provision under section 561-A, Cr.P.C. Should not be used to obstruct or divert the ordinary course of criminal procedure.
14. In a judgment, reported in 1996 SCMR 303, the Honourable Supreme Court has further held that powers under section 561-A, Cr.P.C. Were intended to prevent abuse of process of Court but not to stifle prosecution.
15. In another judgment reported in 2005 SCMR 1544, the Honourable Supreme Court, while dealing with powers of the High Court under section 561-A, Cr.P.C. For quashing the proceedings pending before the trial Court has discussed the principle that when the law provides a detailed inquiry into 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 case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes.
16. The learned A.P.G. Fully supported the orders passed by the trial Court and he was of the view that offences mentioned in the F.I.R. Are rightly being tried by the Anti-Corruption Court in view of section 65-B of the Act. He has also argued that the applicants are involved in very serious charges and if without trial, proceedings are quashed by this Court the public/members of the society shall suffer. He has also submitted that final challan has already been submitted, let the trial Court be allowed to proceed in accordance with law.
17. After hearing the arguments of both the learned counsel I am of the view that trial Court has rightly dismissed the application filed by the applicants under section 249-A, Cr.P.C. And the impugned order does not require any interference. Resultantly, the criminal miscellaneous application is dismissed with the direction to the trial Court to expedite the trial and decide the matter within a period of three months from the date of receipt of the order.