' The charge against the accused is that he being the sole proprietor of Modern Publications, Al- Karam Square, Karachi, on or about 25th June 1988, 3rd July, 1988 and 19th October, 1988, failed to produce the required statements and documents in relation to the business carried out by him for the purpose of determining whether he was doing any banking business in contravention of section 27(1) of the Banking Companies Ordinance, 1962, and thereby committed an offence punishable under section 43-A read with section. 83(1-C) of the Banking Companies Ordinance, 1962.
2. Accused Muhammad Saleem is the sole proprietor of Modern Publications, Al-Karam Square, Karachi. He made an advertisement in Daily Jang, Karachi, dated 15-1-1988 soliciting deposits of money from public. As it appeared to the State Bank of Pakistan that the accused was transacting business of banking in contravention of the said Ordinance, the State Bank of Pakistan, in exercise of the powers under section 43-A of the said Ordinance, issued directives, dated 25th June, 1988 and 3rd July, 1988, calling upon him to furnish/produce to the authorised representatives of the State Bank of Pakistan documents/records/information mentioned therein, but he refused to comply with the same. The reply sent by the accused was considered but it was not found satisfactory. In order to give one more chance a directive, dated 19th October, 1988 was published in Daily Dawn, Karachi, calling upon the accused to produce within seven days all the books and records concerning his business for inspection by the State Bank of Pakistan, but with no result. The accused thus contravened the provisions of section 43-A of the aforesaid Ordinance punishable under section 83(1-C) of the Banking Companies Ordinance, 1962. Consequently on 23-5-1989 a complaint for the said offence was filed against the accused, which was brought on regular file on 29-5-1989.
3. Charge under section 43-A read with section 83(1-C) of the Banking Companies Ordinance, 1962, was framed against the accused, to which he pleaded not guilty and claimed a trial. At the trial the prosecution examined Mr. S.M. Khursheed, Deputy Director (P.W.1), and Muhammad Rafique (P.W.2), and then closed the side.
4. In his statement recorded under section 342, Cr.P.C. The accused has disputed the case of the prosecution. His defence in his own words is as follows:- "In February/March 1988 some officer from the State Bank of Pakistan did visit my office and he wanted to see my accounts. I am running a one man show and I did show accounts to him which I had been maintaining in a note book. Thereafter, the officer did not turn up."
' The accused examined himself on oath (D.W.1), but led no defence.
5. The points for my determination are as follows:---
(i) Whether the State Bank of Pakistan had reason to believe that accused was indulging in illegal banking business?
(ii) Whether the accused has failed to produce/supply relevant record/information when called upon to do so by the State Bank of Pakistan?
6. My findings on the above points are as follows:---
(i) Yes.
(ii) Not proved.
REASONS
7. POINT NO.1: ' Mr. S.M. Khursheed, Deputy Director (P.W.1) has testified to the effect that accused Muhammad Saleem, being the sole proprietor of Modern Publications has made an advertisement in Daily Jang, Karachi, dated 15th January, 1988 (Exh.4) inviting deposits of money from public and consequently it appeared to the State Bank of Pakistan that the accused was indulging in illegal banking business. Although the advertisement (Exh.4) did not invite deposits of money in specific words, but the contents thereof indicated to the State Bank of Pakistan that accused might be indulging in such activities. There was, therefore, reasonable ground for the State Bank of Pakistan to issue directives in terms of section 43-A of the Banking Companies Ordinance, 1962, for the purpose of inspection of record of the accused for determining whether the accused was doing any illegal banking business. Point No,1 is, therefore, answered in affirmative.
8. POINT NO.2: ' Mr. S.M. Khursheed, Deputy Director (P.W.1) has produced the directives (Exhs. 5, 6 and 8). The accused has denied the receipt of these directives. His reply, dated 13-7-1988 (Exh.7) is, however, self-explanatory. The directive (Exh.6) was served upon him and he had in fact replied to it vide (Exh.7). Since the fate of accused hinges upon this letter it is reproduced in extenso to understand the correct position: "With reference to above, it is submitted that I Muhammad Saleem son of Hakimuddin proprietor of M/s. Modern Publications has not done any business of any kind of Investment Company. I also declare that I published an advertisement in the newspaper in classified section for investment the money of investors in my running business which is designing and printing, but no one moved to me for investment in the said business.
' I am running business at CB-12, Mazzanine Floor, Block-3; Al-Karam Square, Karachi whereabout your honour may kindly be enquired my neighbourhood regarding my business activities.
' However, your honour may also verify from my banker whose name is Muslim Commercial Bank Limited, Al-Karam Square Branch, Karachi. My bank account No, is 771.
' In view of the above circumstances your honour is requested to kindly drop the proceedings in my case.
' Thanking you. Yours faithfully,"
9. The prosecution has placed reliance upon an undertaking given by the accused at the bottom of this letter (Exh.7) in his own hand. There is however, nothing on record to prove that the accused was the author of this endorsement. He has shown his ignorance about this undertaking and it was obligatory upon the prosecution to have proved it through convincing evidence. In my view the accused has furnished the required information and he should have been asked specifically to produce any relevant record or information, if wanted by the State Bank of Pakistan. It will not be out of place to mention here that the accused has produced an affidavit before the Inspecting Officer which is brought on record in connected Case No,72 of 1988 and although it pertained to the present case it was deliberately concealed. When an important evidence which has a material bearing on the culpability of an accused person is concealed, the evidence adduced by the prosecution is to be viewed with suspicion.
10. The accused at his own showing has got a small business concern. He claimed to have produced all the record available with him. There is no indication on the record that any effort was made to seize the record of accused by the Inspecting Officers. In such circumstances it is difficult to follow the reasoning of learned counsel for complainant when he states that it was a case of contravention of the provisions of section 43-A of the Banking Companies Ordinance, 1962. It may be noted that in criminal cases the onus is always on the prosecution to prove beyond all reasonable doubt the guilt of the accused. A conviction is certainly not to be based on the weakness of the defence.
11. For all the above reasons I am satisfied that the prosecution has failed to establish the case against the accused beyond any reasonable doubt. The benefit of doubt is extended to accused and he is accordingly acquitted. The accused who is present on bail is discharged from his bail bond.
Accused acquitted.