.. JUDGMENT ' In this case accused-respondent Muhammad Gul had alienated his property on 24-11-1985.
Complainant bank had filed on 17-3-1987, this complaint in this Court alleging that the accused had committed and should be punished for offence under subsection (2) of section 7 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) because he transferred his property in contravention of subsection (1) of section 7 of the said Ordinance.
2. The two subsections of section 7 of Ordinance IX of 1984 read as below:- 7(1) After a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, such person or any relative of such person or other person on his behalf shall not, without the previous permission in writing of the Special Court, transfer, or create a charge on, any movable or immovable property owned by him or in his possession, while proceedings are pending before the Special Court; and any transfer of, or creation of a charge on, such property without such permission shall be void.
(2) Any person who transfers, or creates a charge on, any property in contravention of subsection
(1) shall be punishable with rigorous imprisonment for a term which may extend to three years and shall also be liable to fine."
2-A. The original case against the accused is Case No,332/1985 of this Court, relating to F.I.R. No,7, dated 18-1-1985 of Police Station Sohawa for scheduled offences under sections 409/420, 468 and 471, P.P.C. Interim challan of the sme was submitted in this Court on 2-12-1985. It was adjourned sine die as per interim order of this Court passed on 2-12-1985.
3. Subsection (1) of section 5 of Ordinance IX of 1984 reads as below:- 5(1) A Special Court may take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any police officer.
' Sub-paras. (a) and (1)) of subsection (1) of section 190, Cr.P.C. Are exactly the same. They read as below:- ' 190(1)Except as hereinafter provided District Magistrate or Sub- Divisional Magistrate and any other Magistrate specially empowered in this behalf may take cogizance of any offence:-
(a) upon receiving a complaint of facts which constitute such offence.
(b) upon a report in writing of such facts made by any police officer.
' Learned counsel for the accused submits that since subsection (1) of said section 5 is exact replica of sub-paras. (a) and (b) of subsection (1) of section 190, Cr.P.C. Resort can be made to the judicial interpretations of the said subsection of section 190, Cr.P.C. For the purpose of understanding the true scope of subsection (1) of section 5 of the Ordinance. He submits that before 1923, in sub-para. (b) of subsection (1) of section 190, Cr.P.C. There existed the expression 'police report' which was interpreted by many High Courts to be a final report by police under section 173 Cr.P.C. And the result of the said interpretation was that cognizance could be taken only on police reports of that particular kind and since the legislature did not desire that operation of section 190(1)(b) Cr.P.C. Should be so restricted it amended the said section by replacing the expression 'police report' by more general words 'report in writing of such facts' (i,e, facts constituting an offence) made by a police officer which would cover all police reports. He has in that connection cited Prcm Chand Khctry v. The State AIR 1958 Cal. 213 which lays down the same.
After the said formulation learned counsel for the complainant-Bank failed to carry his said submission any further and to point out any report in writing made to this Court by any police officer before 24-11-1985, the said date of alienation of his property by the accused Muhammad Gul so as to fix criminal liability on him under the said provision. I have no cavil with the proposition that the word 'report' in the said provision does not necessarily mean a police report submitted under section 173, Cr.P.C. As contended by the learned counsel but prior to filing in this Court of the said police report on 2-12-1985, there is no report whatsoever in writing submitted by any police officer and received by this Court in respect of facts constituting scheduled offences. As a matter of fact no report could in law be made to this Court under section 167, Cr.P.C. For the purpose of getting remand of the accused, inasmuch as, the examination of the Ordinance IX of 1984 as a whole shows that it sets up new Courts which are meant only for the trial of persons accused of scheduled offences and lays down no new procedure and invests the Special Courts with no powers for dealing with cases in their preparatory stages upto the point they became ready for trial. That clearly contemplates that grant of remands and making of preliminary orders during the stage of investigation of the cases are to be made by Magistrates in the ordinary way under the provisions of the Code of Criminal Procedure. There is, therefore, no question of any such report having been made before this Court by any police officer, and in consequence, this Court having taken cognizance of offences committed in this case prior to final completion of investigation in this case. Interim challan submitted on 2-12-1985 was the first such report in writing received by this Court. Before that the accused was before this Court in connection with his hail application No,188/1985 only but in proceedings of the same, no such report in writing was submitted to this Court. It is thus clear that on 24-11-1985, the point of time when the accused alienated his property, this Court had not yet taken cognizance of the case against the accused-respondent relating to F.I.R. No,7/1985 and it cannot, therefore, be said that the transfer by accused-respondent of the said property on 24-114985 had been done in violation of subsection (1) of section 7 of the said Ordinance.
4. Learned counsel for the complainant hank has, however, contended that since according to later part of subsection (1) of section 5 of Ordinance IX of 1984, cognizance can be taken by this Court upon a report in writing of facts constituting a scheduled offence made by a police officer and the words 'receipt of the said report in the Court are conspiciously absent after the word 'upon' occurring in that portion of the said provision, the mere factum of such a report being shown to the Court is sufficient to enable this Court to apply his mind and take cognizance of scheduled offences. I, however, need not decide that question of interpretation as it does not appear to arise in the circumstances of the present case. The only date when the case against the accused came up before me prior to 28-11-1985 the date of alienation by Muhammad Gul of his property, is 1-9- 1985 on which the bail application No,188/1985 filed by Muhammad Gul earlier had come up for regular hearing. On an earlier date in the proceedings of this application, I had summoned the 1.0.
Alongwith record for 1-9-1985, and on that day, namely 1-9-1985, Saghir Ahmad S.I. Is stated in the interim order of the said date to be present but it is not specifically recorded therein that he had brought to the Court alongwith him any police record for the purpose of being shown to mc and on the other hand it is recorded in the body of the said interim order that he had stated that in this case, challan had already been submitted in the office of the Deputy Attorney-Gencral and in consequence, it was directed that the Public Prosecutor might find out the said challan and produce it in this Court at the time of hearing on the next date, namely, 5-11-1985. This shows that no report made by any Police Officer was ever brought or shown to me on that day.
5. Apart from that, it is recorded in the very beginning of the interim order dated 1-9-1985, that learned counsel for accused Muhammad Gul had prayed for a short adjournment to enable the said accused to deposit with the hank the remaining sum of Rs,20,100 (due from him). Kh.
Muhammad Farooq, learned counsel for the complainant-Bank, is recorded in the said order to have himself taken the stand that it was in the best interest of the bank itself that the accused should be given time to make up the shortfall in the funds of the hank. Therefore, assuming that any police record had been brought on 1-9-1985 by Saghir Ahmad S.I. Even then in my opinion in the background of facts given above, there was no reason for him to produce it before this Court and addedly there was no occasion for this Court to look into the same. It is clear, therefore, that neither any police diary nor any other report made by the police officer was seen by mc on 1-9- 1985 and next date 5-11-1985 was given to enable Muhammad Gul accused to pay the said sum of Rs,20,100. On the next date, namely, 5-11-1985, I was on leave and bail matter was re-listed for 2-12- 1985 for necessary proceedings. Thus on none of the dates before the crucial date of alienation of property by accused Muhammad Gul, I had even seen any report of facts constituting scheduled offences made by a Police Officer against the accused. It cannot, therefore, be said that I had taken cognizance of scheduled offences against the accused at any time before 24-11-1985, the date of alienation of his property by accused Muhammad Gul. In consequence on that score too, it cannot he said that the accused had alienated his property after this Court had taken cognizance of scheduled offences allegedly committed by accused Muhammad Gul.
6. Learned counsel for the complainant bank has advanced yet another argument. He has now submitted that even perusal of the FIR during the preliminary hearing of the bail application and application of mind by the Court to the facts stated in the FIR for the purpose of discovering whether the accused had committed any scheduled offence as required by subsection (6) of section 5 of the said Ordinance itself amounted to taking cognizance of the case. He further submits that since on the very first date of hearing of the said bail application of accused Muhammad Gul, interim post arrest bail had been granted to the accused, it had been done by this Court after perusal of the F.I.R. And, therefore, cognizance of scheduled offences committed by the accused had been taken by this Court right on that day, namely, 20-7-1985 which took place much before 24-11-1985, the date of alienation by accused-respondent Muhammad Gul of his property. I am afraid I cannot accept this contention. Condition precedent for taking cognizance as laid down in subsection (1) of section 5 of Ordinance IX of 1984 is a report in writing by a police officer to the Court. First informationip report is a report to the police as is clear from section 154 Cr.P.C. And is not al- report by a Police Officer. Addedly, it is a report by an informant and not necessarily by a police officer. Apart from that, it is not a report to this Court but to the police.
Above all, it is a repository of mere allegations made by an informant which are yet unverified while a report by the police means a report which has been made by a police officer after verification by him of the said allegations by means of some enquiry, interrogation of concerned persons and investigation into the said allegations which may enable the Court to take so solemn a step as 'cognizance' of offences reported by police to have been committed in the case. Therefore, mere perusal of the said F.I.R. By me, assuming that I did so on 20-7-1985, was not tantamount to perusal by me of a report by the police of facts constituting scheduled offences. It cannot, therefore, be said that on 20-7-1985 I had taken cognizance of scheduled offences committed by the accused in the challan case against him. This point canvassed by the learned counsel for the complainant bank too is of no avail t.o him and on its basis accused cannot be said to have alienated the said property after this Court had taken cognizance of scheduled offences alleged to have been committed by him.
' For the foregoing reasons I am of the view that the charge against the accused, as made in this complaint is, on the face of it, groundless and proceeding further in this case would be an exercise in mere futility. Therefore, in exercise of my powers under section 249-A/265-K Cr.P.C. I, acquit the accused, Muhammad Gul, of the scheduled offence under subsection (2) of section 7 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. .