MAMOON KAZI, J. -- For reasons to be separately recorded, we allowed this petition by a short order, dated 9-9-1991 and quashed the proceedings pending against the applicant before the learned Special Court (Offences in Banks) Karachi and acquitted the applicant.
2. We now proceed to record the reasons for the said order. The case against the applicant and co-accused Safdar Abbasi Zaidi, the respondent No.2 in this case, was registered on the complaint of P.W.3 Zafar Iqbal, Joint Secretary, Government of Pakistan, Ministry of Finance. According to him, the State Bank of Pakistan bad conducted a probe in respect of the working of nationalised banks in Pakistan as a large number of complaints had been received by it in this regard and during the course of enquiry it was revealed that the Officers of the nationalised banks by disregarding the rules and regulations of the State Bank had been advancing loans to influential persons and their favourites in order to provide pecuniary benefits to them causing wrongful loss to the bank. The matter was then investigated and during the course of investigation it came to light that co- accused Safdar Abbas Zaidi, who at the relevant time was President of Habib Bank Limited, at the instance of and under pressure from applicant Asif Ali Zardari had dishonestly and fraudulently advanced loans aggregating L 17.10 million to the third co--accused, Hyder Ladho Jafar, a Director of Fine English Hotels Limited, London and Whites and Whites Limited (declared absconder by the learned trial Court) on security of property which was already encumbered and thereby they misappropriated and allowed to be misappropriated the aforesaid amounts of L 17.10 million causing wrongful loss to the bank and wrongful gain to themselves and thereby accused Safdar Abbas Zaidi and Hyder Ladho Jafar committed offences punishable under section 409, P.P.C. And applicant Asif Ali Zardari committed an offence punishable .Under section 409/109, P.P.C. Accused Safdar Abbas Zaidi was additionally charged with commission of offence punishable under section S of the Prevention of Corruption Act, 1947 and applicant Asif Ali Zardari, with abetment of the said offence.
3. After evidence of the first six prosecution witnesses had been recorded the applicant filed an application under section 249-A, Cr.P.C. Before the learned trial Court; however, the same was dismissed by the learned trial Court vide its order dated 25-4-1991. The reasons for the same were stated thus:-- "At this stage it is difficult to say that no prima facie case is made out against the accused. If there is evidence which connects accused Safdar Abbas Zaidi with the offences mentioned in the charge then at this stage it cannot be said that Asif Ali Zardari had no concern whatsoever with this offence because at least one witness Ch. Ehsanul Haque has stated that Safdar Abbas Zaidi had acted under the pressure put upon him by Asif Ali Zardari. In view of this piece of evidence it is difficult at this stage to say that the case can be disposed of under section 249-A, Cr.P.C. The application is, therefore, dismissed."
Thereafter, the present application was filed before this Court. It is pertinent to point out that evidence of three more witnesses has been recorded by the learned trial Court during the pendency of these proceedings.
4. Questioning the correctness of the decision of the learned trial Court, Mr. Talib Hussain Rizvi, learned counsel for the applicant has argued that the charge against the applicant is completely groundless and there is no likelihood of his conviction on the basis of the evidence so far produced against him by the prosecution. It may be pointed out that two more witnesses remain to be examined before the learned trial Court on behalf of the prosecution namely the Police Officer who investigated the case against the accused and an officer of the State Bank of Pakistan who, according to the learned counsel for the applicant and the learned Advocate-General, would depose in respect of rules and regulations and instructions of the State Bank in regard to disbursement of loans by the nationalised banks.
5. Learned counsel for the applicant has taken us through the depositions of the prosecution witnesses to support his contention that no case against applicant Asif Ali Zardari has been made out. We, therefore, first propose to briefly refer to them. P.W.1 Muhammad Sajjad Hyder was posted as Assistant Director F.I.A. S.I.U. At Islamabad. He received a complaint in writing from P.W. Zafar Iqbal, Joint Secretary, Ministry of Finance and registered a formal F.I.R. In the case. P.W.2 Mian Akhtar Ali who was posted as Superintendent of Police Headquarters, Rawalpindi on 21-9-1990 had recorded the statements of P.Ws. Vazir Ali Bukhari and Azizur Rehman in the case P.W.3 Zafar lqbal had lodged a report on the basis of which the case against the applicant and the co-accused was registered. P.W.4 Azizur Rehman was posted as Deputy General Manager at London Branch of Habib Bank Limited in April, 1990 when the first application for grant of loan of L 5.00 million by Fine English Hotels was received. Two more applications were received for grant of --- 9.00 million and --- 4.00 million on 2-5-1990 and 9-7-1990 respectively. All the loans, according to the witness, were sanctioned by co-accused Safdar Abbas Zaidi in spite of the various objections raised by the witness and other concerned officers of the bank in respect of the insufficiency of collateral securities. The loan was, however, disbursed in violation of the normal banking practice. The same was done under pressure from applicant Asif Ali Zardari, the husband of the then Prime Minister.
P.W.5 Choudhary Ahsanul Haq was Member Executive Committee of Habib Bank in Karachi at the relevant time. In March, 1990 he was called by co-accused Safdar Abbas Zaidi and introduced to accused Hyder Ladho Jafar. Thereafter applications in respect of the said three loans were received from the said accused from time to time. The loans were granted in violation of the normal banking practice by acceptance of properties as collaterals which were already mortgaged. This witness also deposed that the sanction in respect of the loans was accorded by co-accused Safdar Abbas Zaidi under pressure from applicant Asif Ali Zardari. P.W.6 Kamal Khan was posted at the Head Office of Habib Bank Limited at Karachi as Executive Vice-President at the relevant time. He had also dealt with the different applications made by accused Hyder Ladho Jafar as Director of Fine English Hotels Limited and Whites and Whites Limited respectively. The witness raised various technical objections in respect of the grant of the said loans but the same were overruled by co-accused Safdar Abbas Zaidi and the loans were disbursed in spite of various flaws pointed out by the witness. P.W.7 Ghulam Muhammad Kapadia was posted in the Overseas Circle-I of Habib Bank Limited as Senior Vice-President at the relevant time. On 12-4-1990 the witness was called by P.W. Choudhary Ahsanul Haq alongwith P.W. Kamal Khan and was told by the former to convey to the London Branch of the bank by telex approval of the loan of --- 5.00 million in favour of Messrs Fine English Hotels, London. The witness was told that such approval had been granted by the President, co-accused Safdar Abbas Zaidi himself. The witness further deposed that the grant of sanction was against the established practice as the borrower had opened account for the first time in the London Branch of the Bank on 10-4-1990 and had a paid up capital of only -- - one lac. According to the witness, even the valuation of the property was not done by the Bank's surveyors but the same was done by the surveyors of the borrower. The margin of security was also very low. However, the loan was disbursed despite the objections raised by the witness and other officials working at the Head Office of the Bank. Besides the said loan of --- 5.00 million, two further requests for loan by the same party were subsequently granted in respect of --- 8.10 million and 4.00 million respectively by co-accused Safdar Abbas Zaidi office again against insufficient collateral securities and on account of political pressure of applicant Asif Ali Zardari. P.W.8 Muhammad Aslam who was then posted as Senior Vice-President, Habib Bank Limited, Cannon Street Branch, London has also fully supported the other witnesses on the point. According to the witness, on 9-4-1990 a letter of request was received from accused Hyder Ladho Jafar for a loan of --- 5.00 million against second mortgage of his four properties. A meeting of the Loan Committee was convened on 11-4-1990 which was chaired by Mr. Vazir Ali Bukhari, Senior Executive Vice- President and the then General Manager. U.K. And Europe. During the course of the meeting a telephone call was received from co-accused Safdar Abbas Zaidi by Mr. Bukhari. After the conversation on the telephone had ended the witness was asked by Mr. Bukhari to fax the proposal discussed at the meeting alongwith the objections raised by the office to the Head 'Office without any recommendations. However, in spite of the objections conveyed to the Head Office the Branch received a telex message approving disbursement of loan of --- 5.00 million in favour of Fine English Hotels. The witness further deposed that, according to the guidelines provided by the Head Office of the Bank regarding discretionary powers of the officers posted at U.K. Branch, the loans could be advanced on 20% minimum margin on properties offered as mortgage. However, the margin in the present case was just over 7%. The witness also stated that on the first loan of --- 5.00 million interest had not been serviced since November, 1990 and the principal amount had also become overdue from 31-5-1991 as it was granted for a period of one year only. According to the witness, two similar applications in respect of grant of loans were received from the same party in May and July, 1990 respectively and further loans of b 8.10 million and 4.00 millions were respectively granted at the instance of co-accused Safdar Abbas Zaidi. The witness further deposed that when the second amount of L 8.10 million was being disbursed to the party a loan of b 3.00 million was created at Brussels Branch of Habib Bank Limited and a loan of L1.00 million and b 4.10 million was respectively created at the Rotterdam and London Branches of the Bank.
According to the witness when the third request was received from the party, Messrs Whites and Whites Limited for disbursement of a loan of L 4.00 million P.W.4 Ahsanul Haq was informed that the liquidity position of the Bank was negative and it was not possible to advance any more loans of such large magnitude to any party but the same was overlooked by the Head Office. P.W.9, Tahir Ali Tayyebi was Member, Executive Committee of Habib Bank Limited at Karachi in April, 1990. The witness had dealt with- an application for loan received from Fine English Hotels. The witness noticed one or two points in the application which caused him concern, he therefore, took the application to P.W. Choudhary Ahsanul Haq who was Incharge of Overseas Operations of Habib Bank Limited at the relevant time. The witness pointed out the flaws in the application to Choudhary Ahsanul Haq, one of which was that an additional collateral should be obtained by way of mortgage of property to be purchased by the borrower. The witness was, however, informed by Choudhary Ahsanul Haq that the loan had already been sanctioned and that the President, co-- accused Safdar Abbas Zaidi, had received a call from applicant Asif Ali Zardari and the matter was urgent. The witness then signed the memorandum Exh.7/B. In May, 1990 co-accused Safdar Abbas Zaidi and P.W. Choudhary Ahsanul Haq had gone to U.K. And the witness was looking after the work of the latter in his absence. He received a telephone call from Choudhary Ahsanul Haq from London asking him to process the second loan application made on behalf of Fine English Hotels.
P.W. Kamal Khan, the Circle Executive of the Bank of U.K. Informed the witness that the proposal contained several negative points and the same had not been recommended by the General Manager of London Branch of the Bank. However, the witness received a telephone call from Choudhary Ahsanul Haq saying that applicant Asif Ali Zardari had telephoned co-accused Safdar Abbas Zaidi and that the loan and already been sanctioned and disbursed to the party.
6. Before the trial Court, the prosecution witnesses were confronted by the defence with their statements recorded under section 161, Cr.P.C. And no doubt many admissions were made by the witnesses which were favourable to the defence but Mr. Aftab Akhund, the learned Advocate- General has vehemently argued that such admissions cannot be referred to by the Court unless the police officer who investigated the case has been examined as a witness. According to the learned Advocate-General, such admissions or contradictions can only be confirmed by the Investigating Officer himself. We are, however, of the view that in any case reference by us to such admissions or contradictions would not be necessary as sufficiency or credibility of the prosecution evidence cannot be considered by us as a ground for quashment of the proceedings. This Court is not required to go into such minute details, which would only be considered by the trial Court after conclusion of the trial and at the time of announcement of the judgment. Consequently, in our opinion, it is not necessary to enter into this controversy at all.
7. Although the question to be determined by us is whether the facts disclosed in the F.I.R the challan or the deposition of the prosecution witnesses so far recorded, constitute any offence as alleged by the prosecution against applicant Asif Ali Zardari, the learned Advocate-General has, however, contended that quashing of proceedings can be ordered by this Court in exceptional circumstances only. According to him, one the trial Court has taken a tentative view that a prima facie case is made out against the accused and charge has been framed, the proceedings in the case should not be quashed. The learned Advocate-General has further pointed out that after deposition of six of the prosecution witnesses had been recorded by the learned trial Court an application under section 249-A, Cr.P.C. Was filed on behalf of the applicant before it. Thereafter, when the impugned order was passed, dismissing such application; the present application was filed before this Court. According to the learned Advocate-General, depositions of three more witnesses namely P.W. Ghulam Muhammad Kapadia, P.W. Muhammad Aslam and P.W. Tabir Ali Tayyabi have been recorded by the learned trial Court during the pendency of the present proceedings, therefore, it is imperative for the applicant to move the learned trial Court one again under section 249-A, Cr.P.C. Lastly, it was argued that this Court cannot pre-empt the decision of the learned trial Court in regard to the probative value and admissibility, assessment or evaluation of the evidence. Reliance has been placed by the learned Advocate-General upon various precedents in this regard, the first being the case of M.S. Khawaja v. The State PLD 1965 SC 287. In this case criminal proceedings against the accused were sought to be quashed on the ground of delay in prosecution of the accused. While dismissing the plea it was observed by the Supreme Court as follows:-- "On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with rare to determine whether the judicial proceeding is really intended to `secure the ends of justice' or is really ---an abuse of the process of the Court'. To quash a judicial proceeding in order to `secure the ends of justice' would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an ---abuse---, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassm ent to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
This decision was one again noticed by the Supreme Court in the case of Ghulam Muhammad v.
Muhammad Khan PLD 1967 SC 317. In this case one again the scope of section 561-A of the Code of Criminal Procedure was examined by the Supreme Court. It was then observed:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
The third case referred to by the learned Advocate-General is reported as Mohsin Ali v. The State 1972 SCMR 229. In this case when the evidence was yet to be led in support of the accusations made in the complaint the High Court declined to quash the proceedings against the accused and interfere under section 561-A. The order of the High Court was upheld by the Supreme Court. Similar view was taken in the case of Marghoob Alam v. Shams Din 1986 SCMR 303. In Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 the scope of section 561-A, Cr.P.C. Was again examined by a learned Single Judge of the Lahore High Court and it was observed that jurisdiction under section 561-A was not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code of Criminal Procedure. It was further observed that the High Court would be extremely reluctant to interfere in a case where a competent Court has after examining evidence adduced before it come to the conclusion that a prima facie case is disclosed and has framed charge or summoned the accused to appear, unless it can be said that the charge on its face is groundless or the evidence, even if believed, does not disclose any offence. In Raees Ahmed Khan v. The State 1991 PCr.LJ 1381 which was incidentally decided by one of us (Qaiser Ahmed Hamidi, J.) when a prima facie case had been made out against the accused and the record did not disclose that the accused had approached the trial Court for acquittal under section 249-A, Cr.P.C. But had directly approached the High Court under section 561-A, Cr.P.C., the application was held to have been prematurely filed. Similarly observations were made in the case of Mrs. Shamunnisa Bakhtiar v. The State 1989 P Cr. L J 2451. In another case reported as Shamsul Qamar alias Sepoy v. The State 1984 P Cr. L J 504 it was held by the Peshawar High Court that interference under section 561-A, Cr.P.C. Would be justified only where injustice is of clear character and there exists no other provision of law, by which an aggrieved parry would have sought relief.
8. Mr. Talib H. Rizvi has also sought support from various cases decided by the superior Courts reference to which is also necessary. In Muhammad Rashid v. Mst. Niazan Bibi 1972 SCMR 387 the Supreme Court declined to grant leave to the petitioner and upheld the order of the Lahore High Court quashing criminal proceedings against the accused on the ground that no offence was disclosed in the complaint. Another case reported in 1969 P Cr. L J 764, was cited by Mr. Rizvi wherein the Supreme Court has observed as follows:--- "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
In Khadija v. The State PLD 1978 Kar. 348 Tufail Ali Abdul Rahman, C.J. Quashed the proceedings against the accused on the ground that cognizance in the case had been illegally taken. It was further observed that the proceedings against the accused could also be quashed on the ground that the facts stated in the complaint failed it) constitute an offence. The next case cited by the learned counsel for the applicant is the case of Sh. Sardar Ali v. The State PLD 1987 Lah. 633. In this case a learned Judge of the Lahore High Court after extensively dealing with the scope of section 561-A opined that the inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Criminal Procedure Code. The jurisdiction exercisable under this section is of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. Further reference in this regard may also be made to the cases of Mian Munir Ahmed v. The State 1985 SCMR 257, Muhammad Tahir v. The State 1991 PCr.LJ 644 and Aziz Fatimah v. The State 1988 PCr.LJ 251.
9. The consensus of authorities just referred to by us, therefore, appears to be that although section 561-A, Cr.P.C. Can be invoked to quash proceedings in exceptional cases where the trial of an accused would amount to his unnecessary harassment but the Court ought not to resort to the said provisions if on the basis of the allegations made by the prosecution a prima facie case is made out against the accused. As is clearly indicated by a plain reading of section 561-A, Cr.P.C. It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed by it under the Code of Criminal Procedure or to prevent abuse of process of the Court or to otherwise secure the ends of justice. The power which may be exercised by this Court under section 561-A is, therefore, unrestricted and may be exercised in appropriate cases where no alternate remedy exists under the provisions of the Code of Criminal Procedure.
The power given is much larger than that conferred by the Criminal Procedure Code under section 249-A or 265-K on the trial Court. However, as has been held in the case of M.S. Khawaja by the Supreme Court to quash a judicial proceeding in order to ---secure the ends of justice--- would involve a finding that if permitted to continue that proceeding would defeat the ends of justice or in other words, would either operate or perpetuate an injustice and to find an abuse it would be necessary to see in the proceedings a perversion of the purpose of the law such as to cause harassm ent of an innocent party.
10: Turning now to the first objection raised by the learned Advocate General that a prima facie case has been found against the applicant by the learned trial Court and consequently if an order quashing the proceedings pending against the applicant is passed the same would tantamount to stifling the prosecution, it may be pointed out that the argument on the face of it is unsustainable.
Even in the cases of Ghulam Muhammad or M.S. Khawaja, just referred to by us, the Supreme Court was not laying down any parameters but it was simply laying down a rule of caution. As has been pointed out earlier, the powers of this Court to quash judicial proceedings in order to prevent harassm ent of an accused, by invoking the provisions of section 561-A, Cr.P.C. Are unfettered. If the Court comes to a conclusion that continuance of such proceedings against the accused would defeat rather than secure the ends of justice or that no result in furtherance of justice would come the proceedings in the case can no doubt be quashed. The contention is, therefore, unacceptable.
11. The next objection of the learned Advocate-General was that since the applicant invoked the provisions of section 249-A, Cr.P.C. Before the learned trial Court after examination of only six of the prosecution witnesses by it and three more witnesses have now been examined on behalf of the prosecution during the pendency of the present proceedings before this Court, the matter may be referred again to the learned trial Court for its opinion. It was further argued by him that this Court ought to be reluctant to pre-empt the decision of the learned trial Court in regard to the probative value, admissibility or assessm ent of evidence of the said witnesses. This argument, in our opinion, is again devoid of force. As was pointed out earlier, the power with which section 561-A, Cr.P.C.
Vests this Court to prevent abuse of process of the Court or to secure the ends of justice is much larger than the power with which the trial Court has been vested under section 249-A or section 265-K, Cr.P.C. The exercise of this power is not dependent upon the accused first invoking the provisions of section 249-A or section 265-K before the trial Court. We are, no doubt aware of the fact that ordinarily petitions under section 561-A for quashment of judicial proceedings are not entertained directly by the High Court unless the accused has first approached the trial Court under section 249-A or as the case may be, section 265-K. But the High Court by laying down such rule was only regulating its own procedure there being no specific provision in the Code of Criminal Procedure requiring an accused to first approach the trial Court. Reference in this respect may be made to the case of Saeed Ahmad Siddiqui v. The State 1983 P Cr. L J 1619 and Khushi Muhammad v. Niaz Ali 1984 P Cr. L J 2223. In the first case a learned Judge of the Lahore High Court while referring to the provisions of section 561-A, Cr.P.C. Has observed as follows:-- "As for the points raised by the learned Assistant Advocate-General, I have not been able to persuade myself to agree with him. As for the challenge to the maintainability of this petition under section 561-A, Cr.P.C. That the petitioner should have invoked the revisional jurisdiction of the learned Sessions Judge against the order of Magistrate passed under section 249-A, Cr.P.C. This, appears to be without substance inasmuch as nothing in the Code of Criminal Procedure shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to prevent the abuse of any Court or otherwise to secure the ends of justice. Needless to mention that the law does not require the petitioner to invoke the revisional jurisdiction of the learned Sessions Judge before coming to this Court for quashment of proceedings under section 561-A, Cr.P.C."
Somewhat similar observations were made by another learned Judge `of the same Court in Khushi Muhammad's case. We are, consequently, of the view that this Court can entertain the present application without requiring the applicant to approach the learned trial Court one again under section 249-A, Cr.P.C. Notwithstanding the fact that evidence of three more witnesses has been subsequently recorded after passing of the impugned order, dated 25-4--1991 by the learned trial Court. As has been observed earlier, it was not even imperative under the law for the applicant to move the trial Court first under section 249-A. The argument of the learned Advocate-General that this Court by interfering at this stage of the case would be pre-emoting the judgment of the trial Court is also unsustainable because as pointed out earlier, it is not the function of the High Court in proceedings under section 561-A, to judge the innocence or guilt of an accused by minute scrutiny of evidence recorded against him or by judging the credibility of prosecution witnesses. The enquiry is only to be confined to the question, whether a prima facie case exists against the accused on the facts disclosed in the F.I.R. Or the challan, or the depositions of the prosecution witnesses, if any recorded by the trial Court or the charge is groundless. The second argument of the learned Advocate-General, therefore, must also fail.
12. Having dealt with the preliminary objections of the learned Advocate---General, we now turn to the main question, whether the allegations made by the prosecution against the applicant constitute the offence for which the applicant has been charged. As has been pointed out earlier, the applicant has been charged with abetment of the offences under section 409, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947 allegedly committed by co--accused Safdar Abbas Zaidi. Learned counsel for the applicant has firstly argued that from the evidence of the witnesses, reference to which has earlier been made in this judgment, no offence has been disclosed either under section 409, P.P.C. Or section 5(2) of the Prevention of Corruption Act against co--accused Safdar Abbas Zaidi and hence the applicant cannot be charged with abetment of such offences. The learned counsel has argued that no charge under section 409, P.P.C. Can be sustained unless it is shown that the accused being in any manner entrusted with property or with any domain over it has dishonestly misappropriated the same or converted to his own use any property or dishonestly used or disposed of such property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. Consequently, according to the learned counsel, no offence under section 409 or section 5(2) of the Prevention of Corruption Act appears to have been committed by co-accused Safdar Abbas Zaidi since there is nothing to indicate that the said co-accused had either dishonestly misappropriated or converted to his own use any property or dishonestly used or disposed of such property in violation of any direction of law. The learned counsel has pointed out that loan was disbursed to companies connected with co-accused Hyder Ladho Jafar in the normal course of business of banking and even if it is shown that the said accused had misappropriated the money received by him no offence can be said to have been committed either by co-accused Safdar Abbas Zaidi or the applicant. It may be pointed out in this regard that since co-accused Safdar Abbas Zaidi has not filed any application for quashment of the proceedings before us and is only a respondent in this case, any observations made by us in regard to his case may not only cause prejudice either to his case or that of the prosecution but can also influence the decision of the learned trial Court in respect of the case of the said co-accused. However, in our view, reference to the merits of the case of co-accused Safdar Abbas would not be necessary because assuming that an offence under section 409, P.P.C.
Or section 5(2) of the Prevention of Corruption Act, 1947 has been committed by co-accused Safdar Abbas Zaidi, the main question still is whether applicant Asif Ali Zardari is guilty of an offence of abetment of such offences. The only allegations against Asif Ali Zardari, as pointed out earlier, are that the said loans were sanctioned in favour of absconding accused Hyder Ladho Jafar by co- accused Safdar Abbas Zaidi at the instance of and under pressure of F applicant Asif Ali Zardari.
The offence of abetment has been defined by section 107 of the Pakistan Penal Code. The definition shows in the first instance, that ---a person abets the doing of a thing who instigates any person to do that thing---. Secondly, a person is also said to abet the doing of a thing who ---engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing'.
Thirdly, a person is said to abet the doing of a thing if he ---intentionally aids, by any act or illegal omission, the doing of that thing'. In Ballentine's Law Dictionary the word ---instigate--- has been defined to mean `to stimulate or goad to an action, specially a bad act, to incite, to foment, specially the commission of a crime'. The same word has also been defined by Black's Law Dictionary as `to stimulate or goad to an action, specially a bad action'. `Instigation' has been defined by the same Dictionary to mean as 'incitation, urging, solicitation. The act by which one incites, another to do something, as to commit some crime or to commence a suit'. From the facts and circumstances of the case enumerated by us earlier in this judgment, applicant Asif Ali Zardari cannot be said to have instigated the said co-accused to commit any offence. Mere exerting of pressure by one person upon another to advance loan to a third person cannot amount to instigation. It also cannot constitute a conspiracy because conspiracy means an agreement between two or more persons to accomplish together a criminal or an unlawful act or to achieve by unlawful means any act. No such allegations have been made against the applicant by the prosecution. The learned Advocate-General has argued that under the circumstances of the present case, applicant Asif Ali Zardari had intentionally aided the commission of offences under section 409, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947. No doubt, the accused being husband of the then Prime Minister allegedly did exert political pressure upon co-accused Safdar Abbas Zaidi but howsoever strong the pressure might be, the same cannot amount to aiding or helping the said co-accused to commit the alleged crime unless criminal intention on the accused's part is clearly spelt out. We would like to point out that, as is evident from the definition of abetment contained in section 107, Cr.P.C. Mens rea would be an essential ingredient of the said offence. Maxwell on the Interpretation of Statutes (12th Edn.) at page 123 observes: `where an offence is created by Statute, however comprehensive and unqualified the language of the Statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of the crime, unless a contrary intention is expressed or implied'. The definition of abetment in section 107, P.P.C. Relates to instigation, conspiracy and intentional aiding.
An element of criminality must, therefore, be clearly spelt out before a person can be indicted for abetment. It may be pointed out that applicant Asif Ali Zardari according to the allegations, was neither an officer of the Bank nor it has been alleged that he could wield any direct authority over co-accused Safdar Abbas Zaidi. It has nowhere been alleged that the applicant held any official position, which he could exploit for obtaining undue advantage for co-accused Hyder Ladho Jafar.
The mere allegation that he was husband of the then Prime Minister and exerted pressure on Safdar Abbas Zaidi even if believed, cannot make him guilty of abetment of the offence allegedly committed by co-accused Safdar Abbas Zaidi or Hyder Ladho Jafar, howsoever strong the pressure on co--accused Zaidi may be. If the allegations that co-accused Safdar Abbas Zaidi sanctioned loan in violation of the relevant rules and established banking practice or the instructions of the State Bank of Pakistan are assumed to be correct and assuming that they constitute commission of the alleged offence by the said accused he would be guilty for his own acts but the mere act that he acted under pressure of applicant Asif Ali Zardari cannot establish an offence of abetment against the latter. We are, consequently, of the view that none of the elements that constitute abetment can be spelt out from the case of the prosecution against the applicant.
The charge against the applicant is, therefore, groundless. There is also no likelihood of the applicant being convicted in the case even if the trial of the applicant is allowed to be concluded and the prosecution is permitted to lead the evidence of the remaining witnesses against him. No doubt, we are conscious of the fact that evidence of most of the prosecution witnesses has been recorded by the learned trial Court, but the mere fact that evidence in the case has already been recorded or that the trial of the accused is about to conclude cannot alone be made a ground for dismissal of an application under section 561-A, if the Court is otherwise of the view that the trial of the accused amounts to his harassme nt.
13. For the aforesaid reasons, this petition was allowed and the, proceedings against, the applicant were quashed.