The charge against the accused is that they not being a Banking Company or a Corporation or authority established by the Federal Government or a Company duly authorised in this behalf by the Controller of Capital Issues and Corporate Law Authority or the Registrar Co-operative Societies, invited deposits of money from the public through advertisements dated 10-7-1987, 25- 7-1987 and 21-12-1987, in violation of section 27-A and thereby committed an offence punishable under section 83(1-D) of the Banking Companies Ordinance, 1962.
2. Messrs Patley International (Pvt.) Ltd., Karachi, the accused No.4 is a company registered under the Companies Ordinance, 1984, with accused Khawaja Akhtar Elahi, Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar as its Directors. The accused No.4, inserted/got inserted advertisements in Daily `Jung', Karachi, dated 10th July, 1987 and 21st December, 1987 and Daily `Dawn' Karachi, dated 25th July, 1987, inviting deposits of money from the public in contravention of the provisions of section 27-A of the Banking Companies Ordinance, 1962. Consequently the accused were served with a notice to show cause against the proposed action. The failure of the accused to furnish proper explanation resulted into their prosecution.
3. Charge under section 27-A, read with section 83(1-D) of the Banking Companies Ordinance, 1962, was framed against accused Khawaja Akhtar Elahi, Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar and they were asked whether they plead guilty or have any defence to make to which they claimed a trial. At the trial the prosecution examined Mr. Saeed Haider Bhatti, Deputy Director (P.W.1) and then closed the side.
4. Accused Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar have admitted to have inserted the advertisements inviting deposits of money from public as Directors of accused No.4. They did not examine themselves on oath and led no defence. The defence of accused Khawaja Akhtar Elahi in his own words is as follows:-- "I was director of the said firm (company) but I resigned on 25-7-1987 due to differences with the Managing Director of the Firm (company). My resignation was accepted on 25-7-1987."
Accused Khawaja Akhtar Elahi has examined himself on oath (D.W.1). He also examined Mr. Fakhruddin Mehmood Advocate (D.W.2) and Javed Hussain (D.W.3) in his defence.
5. The points for my determination are as follows:--
(i) Whether the accused inserted advertisements in Daily `Jang' Karachi, dated 10-7-1987 (Exh.8), dated 21-12-1987 (Exh.9) and in Daily `Dawn' Karachi, dated 25-7-1987 (Exh.10)?
(ii) Whether the accused invited deposits of money from public through (Exhs.8 to 10) in contravention of the provisions of section 27-A of the Banking Companies Ordinance, 1962?
(iii) What offence, if any, is committed by accused or any one of them?
6. My findings on the above points are as follows:--
(i) As under.
(ii) As under.
(iii) Accused Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar have committed the offence under section 83(1-D) of the Banking Companies Ordinance, 1962. The case against accused Khawaja Akhtar Elahi is not proved.
REASONS:
7. POINTS NOS.1. 2 AND 3.
All these points are inter-connected, hence for the sake of convenience they are being discussed together.
8. Mr. Saeed Hyder Bhatti, Deputy Director (P.W.1) has produced the letter of Joint Registrar, Joint Stock Companies (Exh.11) by which it was disclosed that accused Khawaja Akhtar Elahi, Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar are the directors of accused No.4. He has also produced the newspapers (Exhs.8, 9 and 10) through which accused No.4 had solicited deposits from the public. Accused Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar have admitted in clear terms that they were the Directors of accused No.4, when these advertisements (Exhs.8 to 10) were made. They have also admitted that these advertisements were inserted by accused No.4, inviting deposits of money from public. There is, therefore, Ito difficulty in answering points Nos.1, 2 and 3 against accused Muhammad Pervaiz Anwar Qureshi and Muhammad Saleem Anwar.
9. Accused Khawaja Akhtar Elahi has, however, disputed the allegations made against him.
According to him the accused No.-1, viz. Messrs Patley international (Pvt.) Ltd., Karachi, was floated on 6-5-1987 and on 9-5-1987 accused Muhammad Pervaiz Anwar Qureshi was appointed as Managing Director and Chief Executive of the company with full responsibilities of all business and financial matters of the company. It is also the case of accused Khawaja Akhtar Elahi that he had developed differences with other directors and consequently served them with legal notice on 15- 7-1987 (Exh.20) on seeing the advertisement (Exh.8) in daily `fang' Karachi, dated 10-7-1987. A notice for convening of Extraordinary General Meetting dated 15-7-1987 (Exh.21) was also given by accused Khawaja Akhtar Elahi. Khawaja Akhtar Elahi as his own witness (D.W.1) has further testified that since accused Muhammad Pervaiz Anwar Qureshi had refused to wind up the company, he tendered his resignation on 25-7-1987 which was accepted by the Board of Directors through a resolution passed on the same day and in his place accused Muhammad Saleem Anwar was taken as new director. The copy of resolution is on record (Exh.22). This fact was further conveyed to Joint Registrar through a letter dated 27-7-1987 (Exh.23). The perusal of record, therefore, confirms that accused Khawaja Akhtar Elahi was not a party to the contravention of the provisions of section 27-A of the Banking Companies Ordinance, 1962. The notice sent by him to co-accused Muhammad Pervaiz Anwar Qureshi, through Mr. Fakhruddin Mehmood Advocate (D.W.2) is on record as (Exh.20), which is self-explanatory. Paragraph 6 of this notice is relevant and for the sake of convenience is reproduced below:-- "That due to my client's illness and thinking yourself the whole and sole owner of the company being appointed as Managing Director you used to advertise in various newspapers and other publications inviting investments from public, residents and non-residents of Pakistan and signed advertising contracts with Advertising Agencies and payments were made by you without the proper resolution passed and written by no both of you being the Directors of the above company to transact or deal in the business lines, and offer profits and other items of the advertisements whatsoever and also used to get amounts from various persons unlawfully and made agreements with said persons and parties independently without the knowledge or written and approved resolution of my said client. That the said acts and transactions are the breach of Banking Companies Ordinance, 1962, and amendment in section 83, etc, and also the section 88 of the Companies Ordinance, 1984."
10. All these facts have been admitted by co-accused Muhammad Pervaiz Anwar Qureshi in his statement on oath recorded in connected Case No.19 of 1988, a certified copy of which is placed on record (Exh.27). The relevant extract reads as follows:-- "It is correct that accused Khawaja Akhtar Elahi has tendered his resignation and his resignation was accepted in a meeting. I see Exh.7. It bears my signature. It is correct that on 25-7-1987 Muhammad Saleem Anwar Qureshi was made as Director in place of Khawaja 4-10Akhtar Elahi. I do not know if any notice was given by accused Khawaja Akhtar Elahi through an advocate Mr. Fakhruddin Mehmood that the company was indulging in unfair practices. I had received a notice for winding up the company from accused Khawaja Akhtar Elahi."
10-A. Javed Hussain (D.W.3) the representative of Joint Registrar has also proved the defence plea taken by accused Khawaja Akhtar Elahi. His evidence shows beyond any shadow of doubt that accused Khawaja Akhtar Elahi had resigned on 25-7-1987.
11. Section 27-A of the Banking Companies Ordinance, 1962 which placed a restriction on advertising for deposits was inserted on 4-6-1987. Likewise section 83(1-D) of the Banking Companies Ordinance, 1962, was also added on the same date in the following words-.-- "If any company, firm or person contravenes the provisions of section 27-A, the Chief Executive of the company and its directors, every member of the firm and such person shall be punishable with simple imprisonment for a term which may extend to six months, or with fine which may extend to one hundred thousand rupees, or with both."
12. The perusal of the record shows that only one advertisement appeared in newspaper (Exh.8) during the period when accused Khawaja Akhtar Elahi was one of the directors of accused No.4.
The other (Exh.10) appeared on 25-7-1987, when his resignation was accepted and the third (Exh 9) was published on 21-12-1087 when he was no more the director of the company. There is also no dispute that accused Khawaja Akhtar Elahi had protested against the advertisement (Exh.8) and the legal notice sent by him is clear on this point. In criminal cases the onus is on the prosecution to prove beyond all) reasonable doubt the guilt of the accused. The wens rea or a guilty mind is an essential ingredient of a criminal offence and it is a sound rule of construction to read this element in the statutory provisions unless the statute expressly or by necessary implication excluded it. Thus a person who was not a party to such advertisements made in newspapers in contravention of the provisions of section 27-A of the Banking Companies Ordinance, 1962 and who had protested against such illegal activities of other Directors with great promptitude cannot be made liable fur what others had admittedly done.
13. Having regard to the above factual and legal position, I am satisfied that accused Khawaja Akhtar Elahi did not contravene the provisions of section 27-A of the Banking Companies Ordinance, 1962 and he is entitled to an acquittal. Accused Khawaja Akhtar Elahi is, therefore, acquitted from the charge. He is on bail and is discharged from his bail-bond.
14. Accused Muhammad Pervaiz Anwar Qureshi is the main accused in this case. He is in custody since 17-1-1990 and has already undergone the maximum sentence, viz. S.I. For six months, as under-trial prisoner lie is, therefore, sentenced to suffer S.I. For six months with concession of section 382-B, Cr.P.C. Meaning thereby that he will be released forthwith, if not required in any other case. Accused Muhammad Saleem Anwar is also found guilty for the offence under section 27-A, read with section 83(1-D) of the Banking Companies Ordinance, 1962, and is sentenced to pay a fine of Rs.5,000 (Rs.Five thousand) or in default to suffer S.I. For one month. He is, however, allowed one month's time to pay the fine in Nazarat.