OM AR SIAL, J. Mirza Shahnawaz Agha has filed the captioned applications impugning an order dated 29-8-2018 passed by the learned Special Court (Offences in Banks) Sindh at Karachi. In terms of the said order, section 265-K, Cr.P.C. applications filed by the applicant were dismissed.
The same order has been challenged through all the captioned applications hence all three applications will be, disposed of through this common order.
2. A background to the case is that the applicant was the Chief Executive and Chairman of a public limited listed company by the name of Beema Pakistan Company Limited ("BPCL"). BPCL is currently under liquidation. On 12-4-2008 the Securities and Exchange Commission of Pakistan ("the Commission") filed a direct complaint before the learned District and Sessions Judge, Karachi South against the officers of BPCL. The complaint was filed under sections 409, 420, 468, 471 and 477-A, P.P.C. read with sections 30 and 37 of the S.E.C.P. Act, 1997. The charge against the accused was framed on 25-9-2009 by the learned 3rd Additional Sessions Judge, Karachi South to which the applicant pleaded not guilty. The learned Sessions Judge examined Jawed. Hussain (PW-1) on 16-5-2010, Shahid Naseem (PW-2) on 27-11-2017. Shahid Azam (PW-3) on 29-11-2017 and Karim Baksh (PW-4) on 29-11-2017. It appears from the record that on 26-12-2017 the Special Court (Offences in Banks) Sindh at Karachi was notified as a court under section 37 of the S.E.C.P. Act 1997 and the case was then transferred to the learned Special Court. The learned Special Court examined Muhammad Asif Piryani (PW-5). While proceedings were underway, the - applicant filed two applications before the learned Special Court. The first was an application under sections 203 and 204, Cr.P.C. in which the applicant stated that the proceedings which took place before the learned Sessions Court was coram non judice and as a de novo trial was not warranted by law, the complaint may be dismissed. The second application was filed under section 265-K, Cr.P.C. praying that the applicant be acquitted. The learned Special Court dismissed both applications vide its order dated 29-8-2018. It is pertinent to also observe that the applicant had filed two applications under section 265-K, Cr.P.C. prior to the one which was dismissed on 29-8-2018 and those applications had also been dismissed.
3. The learned counsel for the applicant has stressed on the ground that the criminal complaint could not have been filed by the Commission as the same has been filed pursuant to the P.P.C., which is a general law, and that the provisions of the Companies Ordinance, 1984 (which was in effect when the charge was framed in 2009), should have been invoked. The only other ground raised by the learned counsel for the applicant is that as the company is in winding up, the criminal complaint against its directors cannot proceed. A number of cases were cited by the learned counsel however none of them had relevance to the matter in hand and stated general principles with which there is no cavil.
4. We have heard the learned counsel-for the applicant as well as the learned law officer for the SECP and the learned DAG. Our observations are as follows.
5. We notice that the ground raised by the learned counsel for the applicant i.e. the provisions of the Companies Ordinance, 1984 instead of those of the P.P.C. will be applicable, was not raised by the applicant before the learned trial Court. There, the plea taken was that a de novo trial cannot be held and that the proceedings before the learned Sessions Judge were coram non judice.
Before this Court, the plea of coram non judice was not agitated instead the plea taken was that the Companies Ordinance instead of the P.P.C. will apply. It was also argued that as BPCL is in liquidation, criminal action against its directors cannot continue.
6. It is an admitted position that it was after an investigation held in accordance with the provisions of the Companies Ordinance, 1984 in March 2007, that the complaint was filed. In accordance with section 270 of the Companies Ordinance 1984, if from an inspection report (as is the situation in the present case) it appears to the Commission that any person has in relation to the company whose affairs have been investigated, been guilty of any offence for which he is criminally liable (which is also the situation in the current case) the Commission may prosecute such person. Further, in accordance with section 281 of the Companies Ordinance 1984 any inquiry or investigation under sections, inter alia 263 (inspection of affairs of company on application by members or report by registrar), and any consequential action taken is not to be affected by a petition of winding up submitted in court.
7. The learned counsel's stress on the fact that in accordance with section 37 of the S.E.C.P. Act 1997, jurisdiction vested with a Sessions Court and therefore the trial could not proceed before the Special Court, is misplaced. Section 37 of the SECP Act, 1997 provides that cognizance of any offence under that Act or its administered legislation (which included the Companies Ordinance, 1984) shall only be taken by a Sessions Court or by any other court notified by the Federal Government in consultation with the Chief Justice of the Province. The Federal Government vide Notification No. SRO (1)/2017 dated 26.12.2017 notified the Special Court (Offences in Banks) Sindh at Karachi as a competent court within the meaning of section 37. Subsequently on 10.02.2018, all cases filed by S.E.C.P. were transferred from the 3rd Additional Sessions Judge Karachi, South (where the complaint was pending then) to the Special Court (Offences in Banks Karachi) for disposal in accordance with law.
8. As regards the learned counsel's argument that the complaint should have been filed under the provisions of the Companies Ordinance, 1984 is concerned, the learned counsel was given an opportunity to demonstrate that the Companies Ordinance, 1984 prescribed punishments for similar offences as S.E.C.P. has complained of, however, he failed to do so. While it is settled that a special law will cede to the general law, in the current situation the special law did not cater to the allegations that had been made by S.E.C.P. Learned counsel has also failed to show that the application of the Pakistan Penal Code was excluded by the Companies Ordinance, 1984. If at trial the applicant is able to demonstrate the same, the learned trial Court may take the same into account.
9. We do not find the grounds raised by the learned counsel for the applicant as grounds entitling the applicant to acquittal under section 265-K, Cr.P.C. The allegation against the applicant is that he committed fraud, misappropriation and criminal breach of trust with BPCL in connection with a purchase and re-purchase of a property, details of which allegations are contained in detail in the complaint filed by SECP. It is evident from a mere reading of the complaint that the B allegations contained therein require evidence to be led before the same can be adjudicated upon. It cannot be said at this stage that the charge is groundless or that there is no possibility of a conviction.
Further, in the trial being held nearly all the prosecution witnesses have been examined hence it would be appropriate if the trial is concluded.
10. For the reasons given above, all the captioned applications are dismissed.