The charge against accused Anwar-ul-Haque is that he being a partner of Messrs Welcome International, MA. Annah Road, Karachi, the accused No.1, on or about 2-4-1988, 12-4-1988 and 31- 5-1988, failed to produce the required statements and documents in relation to the business carried out by the said firm for the purpose of determining whether the said firm 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. Messrs Welcome International, having its office at MA. Jinnah Road, Karachi, the accused No.1, is a partnership firm with absconding accused Khalid Ameen and present accused Anwar-ul-Haque, as its partners. As it appeared to the State-Bank of Pakistan that the accused were 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 2-4-1988, and 12- 4-1988, calling upon them to furnish/produce to the authorised representatives of the State Bank of Pakistan documents/records/information mentioned therein, but they refused to comply with the said directives. In order to give one more chance a directive dated 31-5-1988 was published in Daily Morning News, Karachi, calling upon accused No.1 to produce within seven days all the books and records concerning its 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 this Ordinance. Consequently on 25-4-1989 a complaint for the said offence was filed against the accused, which was brought on regular file on 14-5-1989.
Repeated efforts were made to secure the attendance of both the accused. However, accused Khalid Ameen could not be served. A proclamation under section 87, Cr.P.C. Was issued against him and an order under section 512, Cr.P.C. Was passed. The case then proceeded against accused Anwar-ul-Haque alone.
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, Inspecting Officer (P.W.2).
4. In his statement recorded under section 342, Cr.P.C., accused Anwar--ul-Haque has denied the case of the prosecution. According to him he was employed by co-accused Khalid Ameen as a General Manager and he had nothing to do with the affairs of the firm which was being run by his master. The accused examined himself on oath (D.W.1): He has also examined Niaz Muhammad S.I.P. (D.W.2), and his wife Mst. Iqbal Khatoon (D.W.3) in his defence.
Points for my determination in this case are as follows:--
(i) Whether the State Bank of Pakistan had reason to believe that accused No. l was indulging in illegal banking business?
(ii) Whether the accused No.1 has failed to produce/supply relevant record/information when called upon to do so by the State Bank of Pakistan?
(iii) What offence, if any, is committed by accused Anwar-ul-Haque?
6. My findings on the above are as follows:---
(i) Yes
(ii) Yes,
(iii) Case not proved REASONS Point No. 1.
7. Mr. S.M. Khursheed, Deputy Director (P.W.1) has testified to the effect that accused No.1 has made an advertisement in Daily `Jung', Karachi, dated 25-12-1987, inviting deposits of money from public and consequently it appeared to the State Bank of Pakistan that accused No.1 was indulging in illegal banking business. Although the advertisement is not produced, but since the accused has not disputed this position, I answer it in affirmative.
Point No.2.
8. Muhammad Rafique (P.W.2) who is working as Inspecting Officer, State Bank of Pakistan has served both the directives (Exhs.5 and 6). The first directive was served upon accused Anwar-ul- Haque, General Manager and the other was received by absconding accused Khalid Ameen. The third directive which was published in Daily Morning News; Karachi, on 31-5-1988 (Exh.7) is brought on record through Mr. S.M. Khursheed, Deputy Director (P.W.1). The service of these directives is not disputed by accused Anwar-ul-Haque, who in reply to a question put to him in his statement recorded under section 342, Cr.P.C. Stated as follows:--- "I was working as Manager and in that capacity I had received the directive which I handed over to accused Khalid Ameen. I had received only one directive:"
9. Admittedly the accused N6.1 had not complied with these directives and consequently I have no difficulty in answering this point in affirmative.
Point No. 3.
10. The case of the prosecution against accused Anwar-ul-Haque mainly hinges upon the Annexure (Exh.4), which is, a letter, dated 31-7-1988 received from Registrar of Firms, Karachi. The Annexure (Exh.4) is material and is reproduced in extenso: "Register of Firms.
Firm No.87/1190.
Name:--Welcome International BusinessImport, Export, Advertising, Publishing, No. Of Entry Date of Entry Nature of Entry Remarks 1 10-12-1987 Principal Place: Hall No. 1 IIIrd Floor, Al-Amna, Plaza Opposite Capri Cinema MA. Jinnah Road, Karachi.
2 -do- Other Place: Nil.
3 Partners and their addresses:--
(1) Khalid Ameen son of Sahabzada Muhammad Ameen.
(2) Aisha Khalid wife of Khalid Ameen.
Both residents of House No.13, Street No.5 Model Colony, Karachi.
Both joined on: 10-12-1987.
4 Duration: Partnership at will.
(Sd.)
(S. Ejaz-ul-Hai Rizvi)
Registrar of Firms for Karachi.
5 4-4-1988 Partner Mr. Anwar-ul-Haq son of Mufti Barkat Ali, resident of R-57-58, Paradise Homes M.I. Isphani Road, Sector-4, Gulshan-e-Iqbal, Karachi joined the firm with effect from 27-2-- 1988 and partner Mrs. Aisha Khalid wife of Khalid Ameen retired from the firm with effect from 27-2-1988.
(Sd.)
(S. Ejaz-ul-Hai Rizvi)
Registrar of Firms for Karachi.
11. A bare reading of this certificate would show that accused Anwar-ul--Haque was not the partner of accused No.1 on 25th December, 1987, when the advertisement was made in Daily Jang, Karachi, by accused No.1. It was on this date that it appeared to State Bank of Pakistan that accused No.1 was indulging in illegal banking business. The certificate further reveals that Mrs. Aisha Khalid wife of absconding accused was one of the partners of accused No.1 when it started the business initially. The first directive (Exh.5) is dated 2-4-1988, which was received by accused Anwar-ul-Haque as General Manager. Muhammad Rafique, Inspecting Officer (P.W.2) has also confirmed this fact. It appears that absconding accused Khalid Ameen came to know about the proposed action being taken against him and his wife Mrs. Aisha Khalid and this is how he trapped accused Anwar-ul-Haque, his paid employee, into this net who was taken as partner in place of his wife Mst. Aisha Khalid with effect from 27-2-1988, although such entry was made on 4-4-1988. I have carefully examined the defence plea in juxtaposition with the chronology of the various events mentioned above to see whether I could reasonably reach a conclusion that the former version could be held to be true, and I am satisfied that the possibility of the same being true cannot be ruled out, specially when accused Anwar-ul-Haque had himself invested a sum of Rs.1,50,000 through his wife Mst. Iqbal Bano (D.W.3). Niaz Muhammad S.I.P. (D.W.2) has also produced a report giving support to the defence version. The photocopy of the record (Exh.14) also supports the version of accused Anwar--ul-Haq when he states that he was only paid employee of accused Khalid Ameen and he being a retired person had fallen victim to the unfortunate circumstances.
12. In criminal cases the onus is on the prosecution to prove beyond all reasonable doubt the guilt of the accused. The mens 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 is by necessary implication excluded it. Thus, a person who is himself a victim of absconding accused Khalid Ameen cannot be made liable for the offence with which he is charged only because his name was shown in the certificate of registration by a clever mind after defrauding him and taking undue advantage of his retired status.
13. Having regard to the above factual and legal position; I am satisfied that accused Anwar-ul- Haque did not contravene the provisions of section E 43-A of the Banking Companies Ordinance, 1962 and he is entitled to an acquittal; and he is accordingly acquitted. Accused Anwar-ul-Haque who is present on bail is discharged from his bail bond.
14. The case against absconding accused Khalid Ameen be kept on dormant file.