' SAJJAD ALI SHAH, J.---State seeks leave to appeal against judgment dated 26-9-1991 of the High Court of Sindh at Karachi, whereby Cr. Misc. Application filed under section 561-A, Cr. P.C. Is allowed and in consequence proceedings against respondent No,1 in a case under sections 420/468/471, P.P.C. And section 5 (2) of the Prevention of Corruption Act of 1947 pending in the Special Court (Offences in Banks) Karachi, have been quashed.
2. Briefly stated the relevant facts giving rise to the present petition are that on 4-9-1990 F.I.R. Was recorded at Police Station F.I.A. On the statement of M. Zafar Iqbal, Joint Secretary, Ministry of Finance, Islamabad. As per F.I.R. Inspection Team constituted by the State Bank of Pakistan made a probe into the working of Habib Bank and found that its officers had abused their official positions to provide pecuniary advantage to people beyond considerations, merits and thus caused wrongful loss to the Bank and advanced loans of inadequate collaterals apparently for ulterior motives. The case was registered for offence under sections 420, 468 and 471, P.P.C. And 5 (2) of the Prevention of Corruption Act, 1947. Investigation was made by F.I.A. And finally challan was presented in the Special Court against respondent No,1 Asif All Zardari, respondent No,2 Safdar Abbas Zaidi and third absconding co-accused Haider Ladho Jafer. Trial Court charged respondents Nos.1 and 2 alongwith absconding co-accused for hatching a conspiracy to defraud the Bank to the tune of Pounds 17.1 millions and in that context loans of Pounds 5 millions, 8.1 million and 4 million were advanced to absconding co-accused on different dates on the security of property i,e. London Hotel which was already encumbered. It was further alleged that respondent No,2 Safdar Abbas-Zaidi, who was President of the Bank at the relevant time advanced above mentioned loans acting under the pressure of respondent No,1 Asif Ali Zardari and those loans were misappropriated and or were allowed to be misappropriated.
3. In the trial Court, evidence of six prosecution witnesses was recorded when the two respondents named above filed applications under section 249-A, Cr.P.C. For their acquittal. After hearing counsel for the parties, the trial Court dismissed the applications, inter alia, holding as under:- "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 All Zardari had no concern whatsoever with this offence because arleast one witness Ch. Ehsanul Hague has stated that Safdar Abbas Zaidi had acted under the pressure put upon him by Asif All 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. This application is, therefore, dismissed."
4. Against dismissal of applications under section 249-A, Cr.P.C. By the trial Court, respondent No,1 submitted an application under section 561-A, Cr.P.0 in the High Court for qtiashment of proceedings against him and that application was allowed by a short order passed on 9-9-1991 quashing the proceedings in the trial Court against respondent No,1 with observation which is as under:- "We may further clarify that this order shall have no bearing on the case of co-accused Safdar Abbas, the respondent No,2 or the absconding accused Hyder Ladho Jafer."
5. Detailed reasons were announced later by the High Court vide judgment dated 26-9-1991 against which leave is sought as stated above.
6. Mr. Abdul Haleem Pirzada learned Advocate-General, Sindh on behalf of the State contended before us that application under section 561-A Cr.P.C. Before the High Court was incompetent and not maintainable in view of section 10 of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984. Perusal of section 10 envisages that a person sentenced by a Special Court shall have a right of appeal to the High Court and further no Court shall have authority to revise such sentence or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court. There is no prohibition in this provision express or implied that jurisdiction of the High Court under section 561-A, Cr.P.C. Is barred. We are therefore, of the view that contention is untenable.
7. It was contended by learned Advocate-General that in the proceedings before the trial Court charge had been framed which showed that prima facie case was made out and evidence of six witnesses was recorded, hence interference should not have been made by the High Court under section 561-A, Cr.P.C. And the trial Court should have been allowed to evaluate the evidence on merits. Secondly, by the time application under section 561-A, Cr.P.C. Was allowed by the High Court, trial Court had recorded evidence of three other witnesses, hence High Court should have directed for presentation of application under section 249-A, Cr.P.C. Before the trial Court for fresh decision in the light of additional evidence recorded of three other witnesses. Thirdly, evidence of the witnesses brought on the record should have been considered in conjunction with evidence of the Investigating Officer, who was yet to be examined and could explain or admit the discrepancies.
8. In order to appreciate contentions of learned Advocate-General, it would be accessary to make reference to sections 249-A and 561-A, Cr.P.C. Section 249-A, Cr.P.0 empowers the Presiding Officer of the trial Court to acquit accused at any stage of the trial and the only requirements to be fulfilled are firstly that hearing is to be given to the prosecutor and counsel of accused and secondly reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. It is very clear that application can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application is to be filed after evidence of all the witnesses is recorded.
9. Section 561-A, Cr.P.C. Confers upon High Court inherent powers to make 'such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. Unless trial Court exercises its power under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. If the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
10. In the instant case High Court has given very valid reasons for not directing filing of application under section 249-A, Cr.P.A. Again before the trial Court for fresh consideration in the light of additional evidence of three witnesses recorded by it for the reason that it would make no material difference. During the hearing we enquired from learned Advocate-General whether deposition of Investigating Officer would make any difference and would improve upon deposition of Ch. Ehsanul Haque and his reply was that it would not improve upon the evidence already brought on the record.
11. We have gone through the deposition of P.W.-5 Ch. Ehsanul Haque who was at the relevant time Senior Executive Vice-President and Member of Executive Committee of Habib Bank Limited at Karachi. He has mentioned in his deposition at a couple of places that respondent No,2 Safdar Abbas Zaidi, who was the President of the Bank, mentioned to him the fact that he had received telephone calls from Asif Ali Zardari in connection with sanction of loans. In respect of third loan, call was received by the President from Asif All Zardari for giving reasons for the delay and the President handed over the receiver to this witness, who testified on this point as under:- "There had been delay in the sanction of the third loan, therefore, a call was received by the President from Asif All Zardari calling upon him to give reasons for the delay. I was in the room of the President when this call was received. He handed over the receiver to me to explain to Mr. Zardari the reasons for the delay. Asif Zardari told me that the applicant for loan was known to him for a long time and asked why the loan was being delayed unnecessarily. I explained to him that the delay had been caused as a result of documentation by the London branch and that there was no unnecessary delay. The President then instructed me to convey the sanction of loan to the extent of 4 million pounds to the London branch."
12. It is obvious from the deposition of this witness and his direct conversation with Asif All Zardari on telephone that no threat was extended neither any attempt was made to bring pressure of any kind for release of loans. Only explanation was sought for the delay which was explained and that was the end of the matter. P.W. 5 Ch. Ehsanul Haque in his deposition has made very interesting disclosure, which is reproduced as under:- "I had stated in the bail application that no loss whatsoever was caused to the Bank. As a result of the bail application, I was granted interim bail by the High Court. At the hearing of the bail application before the High Court the FIA had taken the plea that they were not proposing to make me an accused in this case, therefore, they did not oppose the bail application. My statement under section 161, Cr.P.C. Was recorded by the FIA after the above bail application was disposed of by the High Court. A letter was produced by FIA before the High Court that I was no more required as an accused in this case and that I was being made a prosecution witness."
13. In connection with the case set up by the prosecution against Asif All Zardari, High Court has considered evidence brought on the record and the summing up in the relevant paragraph is reproduced as under: "An element of criminality must, therefore, be clearly spelt out before a person can be indicted for abatement. It may be pointed out that applicant Asif All 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 Hydcr 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 offences allegedly committed by co-accused Safdar Abbas Zaidi or Hyder Ladho Jafar, however 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 fact 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."
14. Learned Advocated-General Sindh was unable and at pains to point out any flaw or legal infirmity in the conclusions drawn by the High Court, which is done after fair appraisal of evidence and discussion of correct legal position as is enunciated in the case-law cited and relied upon in the impugned judgment for and against the proposition which are elaborately discussed in detail.
We find no justifiable reason to disagree with the High Court and, therefore, we consider that it is not a fit case for grant of leave. In the result leave is refused and this petition is dismissed as having no merits.