The instant criminal revision has been filed against the impugned order dated 14.12.2010, passed by the Special Judge (Offences in Banks), Lahore, whereby the application under section 249-A, Cr.P.C., moved by Abu Saeed Ahsan Islahi (Respondent No,-1) was accepted and the aforementioned respondent was acquitted from the charge.
2. As per brief facts of the present case, an FIR was lodged against Abu Saeed Ahsan Islahi and others with the allegations that one Ahmad Daud Al-Hussaini (co-accused since P.0), approached the Fidelity Investment Bank Limited, Lahore through an introduction of Respondent No, 1, who was Senior Executive Vice President and Provincial Chief of National Bank of Pakistan, Lahore. On the basis of said, introduction, the aforementioned Ahmad Daud Al-Hussaini (co-accused since P.0) applied for a financial facility of the sum of Rs, 3,800,000/- and 40,000/- shares of ICI Pakistan Limited with transfer deeds were directly delivered to the Fidelity Investment Bank as collateral for the said finance facility through Tasawar Hussain, who was officer of National Bank of Pakistan, Lahore. The said facility was renewed in March, 1994 and once again in June, 1994. On 12.07.1994, Ahmad Daud Al-Hussaini (co-accused since P.0) again approached the Fidelity Investment Bank Limited for further finance facility in the sum of Rs, 15,000,000/- and his request was duly supported by an unconditional undertaking of Bank of Punjab, Lahore along with direct delivery of 76,000/- shares of ICI Pakistan Limited together with duly verified transfer deeds. Further 67,000/- shares of ICI. Pakistan Limited with duly verified transfer deeds were also submitted and delivered to the Fidelity Investment Bank Limited by Rashid Shabbir Khawaja, who was officer of the Bank of Punjab, Lahore. The said disbursement was made in two installments and these two facilities were consolidated on 28.9.1994 and were renewed on 28.12.1994 and 28.03.1995. Total finance amounting to Rs, 18.800/-millions was allowed to Ahmad Daud Al-Hussaini (co-accused since P.0) against the security of aforesaid shares. In March, 1995, ICI Pakistan Limited insourced a right issue of 220 %.
Ahmed Daud Al-Hussaini was called upon to adjust the facility and in the alternative it was informed to lodge the share certificates with ICI Pakistan Limited for obtaining transfer of the said shares. He undertook to adjust the facility and for such purpose Ahmed Daud Al-Hussain (co- accused since P.0) issued a cheque dated 15.06.1995, amounting to Rs, 20,000 millions drawn on the Bank of Punjab but the said cheque was dishonored with the remarks "Refer to drawer" and that the signatures had not matched. On 28.061995, the Fidelity Investment Bank received a letter dated 27.061995 from the ICI Pakistan Limited that the share certificates and transfer deeds for effecting transfer of shares are forged, fake and not genuine. It was further alleged that Ahmad Daud Al- Hussaini in connivance with the concerned bank officials and functionaries knowingly provided forged share certificates and transfer deeds as collateral security to Fidelity Investment Bank Limited and wrongfully managed to obtain total finance facility of Rs, 18.800 millions for their personal gains and caused wrongful and huge monetary loss to public exchequer.
3. During the proceedings of the aforementioned case, before the learned, trial Court, an application under section 249-A, Cr.P.C. Was moved by Respondent No, 1 for his acquittal from the said case, which was accepted by the learned trial Court, vide the abovementioned impugned order, hence the present criminal revision before this Court.
4. It is contended by learned, counsel for the petitioner that Respondent No, 1 along with his co- accused was named in the FIR with specific role of fraud, forgery and cheating, therefore, the impugned order of acquittal of the abovementioned respondent is not sustainable in the eyes of law; that the prosecution witnesses in their statements under Section 161, Cr.P.C. Have specifically implicated the abovementioned respondent in the instant case; that earlier a similar application under Section 249-A, Cr.P.C., moved by Respondent No, 1 was dismissed by the learned trial Court vide order dated 21.04.2004, therefore, a subsequent application under Section 249-A, Cr.P.C., moved by the abovementioned respondent was not maintainable; that it was evident from the contents of the FIR that Respondent No, 1 along with other co-accused in connivance with each other has committed the offence while holding a responsible post and caused huge monetary loss to the complainant bank; that sufficient opportunity was not given to the prosecution to prove its case against Respondent No, 1; that the abovementioned respondent has miserably failed to point out any mala fide on the part of the prosecution for his false involvement in the instant case; that Respondent No, 1 was declared guilty during the course of investigation of this case; that the impugned order was passed against the facts and record of the present case, therefore, the same may be set aside. In support of his contentions, learned counsel for the petitioner has placed reliance on the judgment reported as The State through Advocate General, Sindh High Court of Karachi Vs. Raja Abdul Rehman" (2005 SCM R 1544).
5. On the other hand, this petition has been opposed by learned counsel for Respondent No, 1, on the grounds that FIR in the instant case was lodged on 26.07.1995 and the case remained pending before the learned trial Court for a period of more than 15 years and thereafter vide the impugned order dated 14.12.2010, the petitioner was acquitted u/S. 249-A of Cr.P.C.; that there is nothing available on the record that the petitioner played any role in the transaction of loan given to Ahmad Daud Al-Hussaini (co-accused since P.0); that the allegation against the petitioner is that he verbally introduced the aforementioned Ahmed Daud Al-Hussaini to the officials of Fidelity Investment Bank Limited, Lahore and on the direction of Respondent No, 1, the prosecution witnesses extended facility of loan to the abovementioned co-accused but if Respondent No, 1 had issued any such direction and the officials of Fidelity Investment Bank Limited, Lahore acted upon such direction, then the prosecution witnesses should have been made an accused in this case but instead of that they have been made prosecution witnesses; that in fact Respondent No, 1 did not introduce the abovementioned co-accused to the officials of Fidelity Investment Bank Limited, Lahore and he has been made a scapegoat in this case in order to save the real culprits, that the earlier application under Section 249-A, Cr.P.C., filed by Respondent No, 1 was dismissed vide order dated 21.4.2004 and thereafter the prosecution did not produce any evidence against the petitioner and the case remained pending before the learned trial Court for another period of six years and then the impugned order dated 04.12.2010, was passed by the learned trial Court; that as there was no probability of conviction of Respondent No, 2, therefore, the impugned order was rightly passed; that there is no substance in the present revision petition, therefore, the same may be dismissed.
6. Arguments heard. Record perused.
7. We have noted that FIR was lodged in this case on 26.07.1995 and the case remained pending before the learned trial court for a period of more than 15 years but during this period, the prosecution did not produce any evidence, before the learned trial Court. The earlier application under Section 249-A, Cr.P.C., filed by Respondent No, 1 was dismissed vide order dated 21.4.2004 and after that the case remained pending before the learned trial Court for another period of more than six years but admittedly not a single witness was produced by the prosecution before the learned trial Court and ultimately the application under Section 249-A, Cr.P.C., filed by the abovementioned respondent was accepted vide the impugned order dated 04.12.2010. Admittedly Respondent No, 1 was Senior Executive Vice President/Provincial Chief of National Bank of Pakistan, Lahore, at the relevant time and he was not an officer of the complainant bank i,e, Fidelity Investment Bank Limited, Lahore. It is also an admitted fact that there is no allegation that Respondent No, 1 prepared or processed any document for obtaining loan by the co-accused namely Ahmed Daud Al-Hussaini (since P.0). As per prosecution's case, Shafiq Ahmed Khan, President/Chief 'Executive Fidelity Investment Bank Limited, Lahore stated that he was verbally asked by Respondent No, 1 to disburse the loan to the principal accused Ahmad Daud Al-Hussaini (since P.0) but the aforementioned Shafiq Ahmed Khan, who was actually responsible for disbursement of the loan to the principal accused has not been made an accused in this case rather he has been made a prosecution witness. There is absojutely no documentary evidence, from which it could be established that Respondent No, 1 played any role in disbursement of the loan amount to the principal accused. Finance facility was extended by the complainant bank to Ahamd Daud Al-Hussaini (co-accused since P.0), on the application of the said co-accused and submission of collateral sureties like ICI Pakistan Limited shares and certificates etc. Respondent No, 1 was not even an officer of ICI Pakistan Limited.
' It is also evident from the perusal of the record that finance facility to the principal accused was disbursed in two installments of Rs, 7,000 million and 6,800 million each by the complainant bank on 18.07.1994, which were consolidated on 28.09.1994 and the same were renewed on 28.12.1994 by the complainant bank, without any role of Respondent No,
1. It is also evident from the contents of the FIR that on 12.07.1994 the principal accused namely Ahmad Daud Al-Hussaini again approached the complainant bank for further finance facility of 15 million and his request was duly supported by an unconditional undertaking of the Bank of Punjab, Lahore along with direct delivery of 76,000/- shares of ICI Pakistan Limited together with duly verified transfer deeds. Abu Saeed Ahsan Islahi (Respondent No, 1) was an officer of National Bank of Pakistan and he had nothing to do with the unconditional undertaking of the Bank of Punjab, Lahore. The cheque of an amount of Rs, 20,000/- millions drawn on the bank of Punjab, which was later on dishonoured, was issued by Ahmed Daud Al- Hussaini (co-accused since P.0) and admittedly Respondent No, 1 was neither present at the time of issuance of the aforementioned cheque nor he was a party to the said cheque. It is also note-worthy that there is nothing on the record that any money was transferred in the account of Respondent No, 1 or he is a beneficiary in this case.
8. Keeping in view all the aforementioned facts and as the FIR was lodged on 26.07.1995 and the case remained pending before the learned, trial Court for a period of more than 16 years but no evidence was produced by the prosecution before the learned trial Court therefore, the application moved by Respondent No, 1 under Section 249-A, Cr.P.C. Was rightly accepted by the learned trial Court and the said respondent was rightly acquitted vide the impugned order dated 14.12.2010.
9. The facts of the judgment cited by learned counsel for the petitioner are distinguishable from the facts of the present case as in the case of "Raja Abdul Rehman" supra (2005 SCM R 1544), it was held by the August Supreme Court of Pakistan that the Magistrate should have not decided the application of the accused under Section 249-A, Cr.P.C. At such stage, when the case has reached at its final stage, whereas in the present case, despite the lapse of more than 16 years, not a single witness was produced by the prosecution, in this case by the prosecution. Similarly second application under Section 249-A, Cr.P.C. After dismissal of first application on 21.04.2004 was not barred because the prosecution after dismissal of first application under section 249-A, Cr.P.C., vide order dated 21.04.2004, did not produce a single witness for a period of more than another six year and in the circumstances, the learned trial Court was left with no option but to acquit Respondent No, 1, vide the impugned order dated 04.12.2010.
10. In the light of above discussion, there is no substance in the present criminal revision, hence the same is hereby dismissed.