Through this consolidated judgment I propose to decide Crl. Appeal Nos, 169/2009, 186/2009 & 187/2009 as they arises from the same FIR and involve similar questions of law and facts.
The Prosecution case
2. Briefly , the prosecution case is that Ch. Abdul Ghafoor , Zonal Chief, Punjab Provincial Cooperative Bank Limited ("PPCBL"), Multan Zone, vide letter dated 13.5.1997, made a complaint to the Additional Director , Anti-Corruption Establishment, 'Multan, 'for registration of criminal case against the staff of, PPCBL, Khanewal .Branch, for misappropriating public money . He stated that Mehmood Ahmad was posted as cashier in the aforesaid branch.
The General Manager of the, PPCBL, vide Office Order No, 64 dated 18.2.1997, deputed him to work as Field Officer in the Khanewal District. The said Office Order was received in the branch on 22.2.1997 and when the Branch Manager asked Mehmood Ahmad to hand over the charge he locked the cashier's cabin and went away without the permission of his superiors and did not turn up till late in the evening . The matter was brought to the notice of the General Manager who constituted a committee which lodged Rapt No, 12 dated 25.2.1997 at Police Station City Khanewal about this incident. On 26.2.1997 the aforesaid committee opened the cabin and found that the cash was short by Rs, 16,37,544.33. Consequent thereupon, the auditors were tasked to conduct a thorough audit of the branch. Balance confirmation letters were also issued to the account holders who lodged claims which were supported by their passbooks and deposit-slips. The auditors found massive irregularities in the branch and reported embezzlement of Rs, 48,72,685/- from 74 accounts and shortage of Rs, 16,37,544/- in the cash-in-hand.
The Audit Report identified eight persons who were involved in the scam, including, Haji Ghulam Rasool, Sheikh lrshad Ahmad Paracha, Mubashir Iqbal, Mehmood Ahmad, Syed Ijaz Abbas, Syed Murtaza Hussain Shah, Mian Ghulam Mustafa and Muhammad Saleem. On the basis of the said complaint FIR No, 138/1997 dated 26.8.1997 for offences under Sections 420/467/468/471/409, PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, was registered at Police Station ACE, Multan Region, Multan. The ACE investigated the case and found that the accused had committed the of fence. Report under Section 173, Cr .P.C. was submitted accordingly .
3. The learned Special Court summoned the afore-named accused and indicted them. All of them pleaded innocence and claimed trial. During the course of trial Mubashir Iqbal and Irshad Ahmad Paracha passed away so proceedings against them abated.
4. The prosecution cited 94 witnesses in the calendar of witnesses. Out of them testimony of 31 witnesses, including six from the, PPCBL, was recorded when the learned trial Court vide three separate orders dated 4.2.2009, 7.2.2009 and 13.2.2009 acquitted the accused. The, PPCBL has filed Crl. Appeal Nos.169/2009, 186/2009 and 187/2009 under Section 417(2A), Cr .P.C. against these orders challenging their acquittal.
5. Crl. Appeal No, 169/2009 Order dated 13.2.2009 impugned in this appeal reads as under: "Precisely , the allegation against Rao Mehmood Ahmad and Ijaz Abbas is that they misappropriated Rs, 22,37,086/- and Rs, 14,97,386/- respectively .
"2. Today , both the accused have undertaken to deposit the afore-mentioned amounts in three installments. Their statements have been separately recorded. Keeping in view the conduct of both the accused and the fact that there was some dispute regarding calculation of amounts, no offence has been made out against them. By placing reliance on Nadir Shah vs. the State (1980 SCMR 402), Rao Mehrnood Ahmad and Ijaz Abbas accused are acquitted. In case they stop payment of afore-mentioned amounts to the bank, the same will be recovered from them as arrears of land revenue."
Crl. Appeal No, 186/2009 Order dated 4.2.2009 assailed in this appeal is as follows: "Precisely , the allegations against Muhammad Saleem and Muntazer Hussain are that they misappropriated Rs, 25000/-and Rs, 2,34,799/- respectively .
"2. It has been admitted on 'the record that all amounts due against the accused were deposited by them. Had they any bad intention they would not have deposited these amounts. In this view of the matter , even this is not a case of temporary embezzlement so far as Muhammad Saleem and Muntazer Hussain accused are concerned.
Therefore, Muhammad Saleem and Muntazer Hussain accused are acquitted of the charges."
Crl. Appeal No. 187/2009 Order dated 7.2.2009 challenged in this appeal is reproduced below: "Precisely the allegation against Ghulam Rasool is that he had misappropriated Rs, 13,29,169.63 owned by the Punjab Provincial Cooperative Bank, Khanewal. Mr. Khalid Mehmood Advocate learned counsel for the bank has informed this Court that Rs, 8,43,469/- has been deposited by the accused and the remaining amount will be deducted from his G.P. Fund and gratuity . It seems clear that Ghulam Rasool accused has fulfilled his responsibility by satisfying entire arrears due from him. To his extent this is not even a case of temporary embezzlement.
Reliance in this behalf is placed on Nadir Shah vs. The State (1980 SCMR 402). Consequently , Ghulam Rasool accused is acquitted of the charges." Arguments
6. In support of the above-mentioned appeals Ch. Khalid Mehmood Arain, Advocate, contended that the impugned orders were illegal, arbitrary and perverse and were thus not sustainable. He argued that, firstly , the learned Special Court suo moto invoked Section 249-A, Cr.P.C. and acquitted the accused-respondents without providing opportunity of hearing to the Appellant/Complainant and issuing notice to the Public Prosecutor . Secondly , the prosecution had examined 31 witnesses and 63 more were still in the queue. Ample incriminating evidence was already available on record against the accused-respondents and it could not be said that the charge against them was groundless. The holding of the learned Special Court that they had no dishon est intention to keep the bank's money with them was fallacious and contrary to record. Lastly , the learned Special Court had acted in haste. The law is well settled that the Courts should not short circuit the trial and, unless there are exceptional circumstances, allow the prosecution full opportunity to prove its case and then decide it on merits. He prayed that these appeals be, accepted, the impugned orders be set aside and the matter be remanded to the learned Special Court.
7. The learned Deputy District Public Prosecutor supported these appeals and while adopting the arguments of the learned counsel for the Appellant added that corruption was rampant in the country and its eradication was possible only if the people involved were punished.
8. On the other hand, M/s. Muhammad Suleman Bhatti and Nishat Ahmad Siddiqui, Advocates, who represented the accused-Respondents in Crl. Appeal No, 169/2009, controverted the above contentions. They contended that the proceedings against the accused-Respondents were without jurisdiction. The learned Special Court could take cognizance of the alleged offence only on the complaint of the Registrar Cooperatives (or by a person duly authorized by him) under Section 63 of the Cooperative Societies Act, 1925 (the "Act"). In the instant case, no such complaint was ever made by the Registrar . They further contended that the impugned orders were based on correct appreciation of law and facts. They argued that after getting the FIR registered, PPCBL, held departmental inquiry against the accused-respondents in which some of them were exonerated and reinstated in service. This clearly showed that the, PPCBL had lodged ' the FIR on the basis of a faulty Audit Report and the charge against the accused-respondents was groundles s. Even otherwise, inasmuch as more than two decades had elapsed since the time when the alleged offence was committed, no useful purpose would be served in remanding the case to the learned trial Court. M/s. Muhammad Anwar Awan, Waseem Mumtaz and Mehr Ashfaq Ahmad Utra, Advocates, who appeared in Crl. Appeal No. 186/2009 & Crl. Appeal No. 187/2009 adopted the arguments of M/s. Muhammad Suleman Bhatti and Nishat Ahmad Siddiqui, Advocates. They , all prayed for dismissal of these appeals.
Opinion of the Court
9. I have heard the learned counsel for the parties at length and have gone through the record with their able assistance.
10. I first take up the objection relating to the legality of the Proceedings initiated against the accused-respondents.
Admittedly , Ch. Abdul Ghafoor , Zonal Chief, PPCBL, got registered FIR No, 138/1997 dated 26.8.1997 without obtaining sanction from the Registrar Cooperatives and thereafter the learned Special Court took cognizance and put them to trial. The aforesaid objection is premised on Sections 63 and 70-A of the Act which are reproduced hereunder for ready reference:
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 authorised for the purpose by him: Provided that cognizance of an offence under sub-section (2). of Section 62-A may be taken, even otherwise than on such complaint.
70-A. Bar of Jurisdiction .--(1) Notwithstanding anything in provided n 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 Co-operative bank or any other person is empowered by or under this Act, or the rules or by-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, a Co-operative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and by- 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 by-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 sub-section (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 Co-operative 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 sub-section (1), shall stand vacated and be without any force.
11. It is well settled that the provisions seeking to oust or restrict the jurisdiction of the Courts are to be construed strictly or with a pronounced leaning against ouster/restriction. Further , unless very explicit words are used in the statute itself in that behalf such an intent ion would not normally be imputed to the Legislature. Reliance is placed on Abbasia Cooperative Bank (now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v.
Hakeem Hafiz Muhammad Ghaus and 5 others (PLD 1997 SC 3 ).
12. In the instant case, a bare reading of Section 63 would show that it bars a Court from taking cognizance of the offences punishable under the Act. The said offences have been enumerated in Sections 60, 61 & 62 thereof. It does not apply to offences under the general law or any special law. Similarly , Section 70-A bars jurisdiction of the Court only in respect of the matters which fall within the domain of the Provincial Government, the Registrar (or his nominee), an arbitrator , a liquidator , a society , a financing bank, a cooperative bank under the Act. The offences under Sections 420, 467, 471, 409, ITC and Section 5(2) of the Prevention of Corruption Act, 1947, do not fall in this category . In other words, complaint in terms of Section 63 is required for prosecution of offences under the Act, viz, offences mentioned in Sections 60, 61 and 62 thereof and not in respect of the other offences. This view was expressed in Sindhi Cooperative Housing Society Ltd., etc. v. The Superintendent of Police , etc. (NLR 1990 Criminal 504), Hamdard Cooperative Society v. Government of Sindh and others (1990 MLD 1060 ) and Mubarak Hussain Siddiqui and another u. Sajjad Hassan Khan and another (PLD 1992 Kar. 167) which was eventually approved by the Hon'ble Supreme Court of Pakistan in Mian Khan v. Ghulam Mustafa and 6 others (1996 SCMR 654) where the appellant challenged the inquiry initiated by the ACE on the basis of Sections 63 & 70A, ibid. The Apex Court explained: "It is quite clear from reading of Section 63 of the Act 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 and this ouster of jurisdiction too ceases to be applicable as soon as a written complaint is filed by the Registrar or a person authorized by him in this behalf, before the Court. However , in respect of offences punishable under any other law, the jurisdiction of ordinary Court to take cognizance is not at all affected by Section 63 of the Act. The offences and penalties prescribed therefor under the Act are stated in Sections 60 to 62 of the Act. Therefore, if a question arises whether the jurisdiction of the Court to take cognizance of an offence is barred under Section 63 of the Act, the Court has to determine whether the allegations constituted an offence punishable under the Act or not. If the answer to this question is in the affirmative the Court will stay its hand in the matter until such time a written complaint is filed before it by the Registrar or a person authorized by him in this behalf. However , if the answer to the above question is returned by the Court in the negative, the Court may take cognizance in the matter and proceed further ."
13. In support of his contention the learned counsel for the accused-respondents relied on Khanzada Hadayat Ali Khan v. Mazhar Ali Khan and others (1985 PCr.LJ 2871) but the same is distinguishable. In the said case the accused were members of the Managing Committee or Secretary of the Model Town Cooperative Society Ltd. and the dispute touched the business and internal management of the society . It is now well settled that a dispute touching the business of society , betwee n member or members and the past members of the society or between members and the society or its Committee, is quite distinct and separate from the allegations which discloses an offence against the of fice bearers of the society . In Mian Khan's ease (supra) , the Apex Court explained: "The provisions contained in Sections 54 and 63 of the Act are attracted in different context and situations. Section 54 is not attracted in a case where allegations are that an officer or the office- bearer of the Cooperative Society has committed an act which is punishable under Pakistan Penal Code or under some Other law. Similarly , Section 70-A of the Act bars jurisdiction of all other Courts and authorities to entertain or to adjudicate upon any matter which the Provincial Government, Registrar or his nominee, any arbitrator , a liquidator , a Society , a financing bank, a Cooperative Bank or any other person is empowered by or under the Act or rules or bye-laws framed thereunder , to dispose or to determine. Here again the condition precedent to attract the application of ouster clause is that the matter in issue is such which the Registrar , the Provincial Government or Registrar's nominee is authorised under the provisions of the Act to decide or adjudicate upon. This provision also cannot be pressed into service, if the allegations against the officer or office-be arer of the Society disclose an offence which is punishable under a law other than the Act."
14. It is pertinent to add that Section 65-B of the Act stipulates that every officer of a society , including a co- operative bank, shall be deemed to be a public servant within the meaning of Section 21, PPC. In this view of the matter , case FIR No, 138/1997 was exclusively triable by the Special Court, Anti-Corruption, and the learned Special Judge rightly assumed jurisdiction. Resultantly , all objections of the accu sed-respondents with regard to legality of the proceedings before him are repelled.
15. Now I attend to the challenges laid to the impugned orders by the Appellan t. Section 6(3) of the Pakistan Criminal Law (Amendment) Act, 1958, stipulates that the provisions of Chapter XX of, the Code of Criminal Procedure, 1898, shall apply to trial of cases by the Special Courts constituted thereunder unless they are inconsistent with it. Admittedly , in the instant case the learned Special Court invoked Section 249-A, Cr.P.C. suo moto to acquit the accused-respondents. They did not make any application for this purpose. The said Section reads as under: 249-A. Power of Magistrate to acquit accused at any stage.-- Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any of fence.
16. Relying on M. Saleem Anjum v. Majid Nizami and 4 others (1990 MLD 206) and The State v. Muhammad Afzal and another (2000 MLD 220) the learned counsel for the Appellant argued that suo moto action of the learned Special Court was inapt. The learned counsel for the accused-respondents rebutted this argument with the submission that the language of Section 249-A, Cr.P.C. does not bar the trial Court to exercise the power conferred thereunder on its own if the circumstances permit. He maintained that a formal application by the accused is not a pre-condition for this purpose. It is not necessary for this Court to give its opinion on this controversy because it is admitted on all hands that the impugned orders were passed without issuing notice to the learned prosecutor and affording him an opportunity of hearing which was mandatory . The following obser vations of the Hon'ble Supreme Court in the case cited as The State v . Sarwar Khan and others (PLD 1984 SC 428 ) are quite instructive: "Further , while recording an order under Section 249-A, Cr.P.C. the Court should afford an opportunity to the prosecutor before recording an order of acquittal and that can be done either by issuing a show-cause why such an order be not recorded."
The cases of Mst. Naseem Akhtar v. Murad Ali and others (1986 PCr.LJ 1824), Muhammad Saleem v. Muhammad Ismail and another (1987 PCr.LJ 1633) and The State through A.G., N.W.F.P. v. Abdul Latif and another (1990 PCr.LJ 1 13) reiterate the above principle.
17. There are ample authorities on the point that the expression "at any stage" used in Section 249-A, Cr.P.C. indicates that the Court may exercise the powers conferred on it thereunder at the very initial stage, after taking cognizance or in the middle of the trial after recording some evidence or later befor e the judgment is handed down.
For purposes of illustration reference may be made to State through Secretary , Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523) and Muhammad Khalid Mukhtar v. The State through Deputy Director , FLA. (C.B.A.), Lahore (PLD 1997 SC 275). However , the said power must be used sparingly and every possible opportunity should be afforded to the prosecution to prove its case and establish guilt of the accused. In The State through Advocate-General, Sindh high Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544 ), the Hon'ble Supreme Court held: "This Court in the cases of Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. The State and another PLD 1999 SC 1063 did not approve decision of criminal case s on an application under Section 249-A, Cr.P.C. or such allied or similar provisions of law, namely , Section 265-K, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits ..."
18. Perusal of the record reveals that the prosecution had cited 94 witnesses in the calendar of witnesses. At the time when the impugned orders were passed it had examined 31 which included six from the, PPCBL. A wade through their depositions reveals that there was sufficient incriminating material against the accused-respondents.
The remaining 63 witnesses were yet to be recorded. In the circumstances, it could not be said that the charge against them was groundless and there was no probability of their being convicted -- the only basis on which Section 249-A, Cr.P.C. could be invoked. The learned Special Judge has not addressed this legal issue in any of the impugned orders. It appears that he was swayed by the fact that the accused-respondents had returned the money that they were alleged to have misappropriated. In law this may be a ground for lesser punishment but not acquittal.
19. I have noted that in Crl. Appeal No, 169/2009 the learned Special Judge acquitted Mehmood Ahmad and Ijaz Abbas on the ground that there was some dispute between them and, PPCBL regarding calculation of amounts.
Similarly , in Crl. Appeal No, 187/2009 he recorded a finding that the prosecution had not been able to prove even the charge of temporary embezzlement against Ghulam Rasool. The said findings are arbitrary and are not based on any evidence. The learned Special Judge's reference to the case of Nadir Shah v. The State (1980 SCMR 402) is inapt and has no relevance to the facts and circumstances of the instant case.
20. It has been brought to the notice of this Court that after getting the FIR registered, PPCBL, held departmental inquiry against the accused-respondents in which some of them were exonerated and reinstated in service. I am afraid, this has no bearing on the instant case which has to be decided on its own merits. In State through Prosecutor -General, Punjab v. Jahangir Akhtar and others (2018 SCMR 733), the Hon'ble Supreme Court observed: "The impugned orders passed by the trial Court in the Respondents' cases show that the trial Court was labouring under a misconception that on account of compulsory retirement of the Respondents from service they could not be criminally prosecuted for the same matter as such prosecution was to amount to double jeopardy attracting the provision of Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and Section 403, Cr.P.C. and even the High Court had agreed with the said opinion. It had not been apprec iated by the Courts below that disciplinary action taken by a department and criminal prosecution are quite distinct from each other and can proceed simultaneously or one after the other and such separate actions do not attract the principle of double jeopardy . It has already been clarified by this Court in many a precedent case that disciplinary proceedings are meant solely for maintaining and ensuring purity of service whereas criminal prosecution is meant to punish a person for the offence committed by him and that in a proper case departmental and criminal proceedings can proceed simultaneously or one after the other ."
21. It is true that the principles governing the decision of appeal against acquittal are different from an appeal filed against conviction. The Appellate Court should interfere in an order for acquittal only where the trial Court has committed grave irregularity which has caused miscarriage of justice. Howeve r, an accused acquitted under Section 249-A or 265-K, Cr.P.C. stands on a different pedestal. In this respect I am guided by the law laid down by the Hon'ble Supreme Court of Pakistan in Raja Abdul Rehman's case (supra): "It will not be out of place to mention that in appeal or Revisional proceedings, the order of acquittal of the accused under Section 249-A or 265-K of the, Cr.P.C. would not have the same sanctity as orders of acquittal on merits.
Consequently , the principles which are to be observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged inquiry and trial to acquittals under Section 249-A, Cr .P.C. would not be applicable."
Conclusion
22. In view of what has been discussed above, in my opinion, the impugned orders are patently illegal, perverse and thus not sustainable. Resultantly , Crl. Appeal Nos, 169, 186 and 187 of 2009 are accepted and the impugned orders of acquittal of the accused-respon dents are set aside. The case is remanded to the Special Court which shall proceed with the trial from the stage when the impugned orders were passe d and conclude the same within the shortest possible time.