1. ' ABDUL RAHIM KAZI, J.--By this common judgment we intend to dispose of both Criminal Revision Applications as they arise out of the same order passed by the Presiding Officer Special Court (Offences in Banks) at Karachi (Justice Retd. Fakhruddin H. Sheikh) on 5-5-1991 in Case No, 29 of 1990 acquitting the present respondents Nos. 1 to 5 under section 249-A, Cr.P.C. The two Criminal Revision Applications have been filed by the Federal Investigating Agency and Federal Government.
2. ' Briefly the facts are that on 3-9-1990 one Muhammad Saleem Sheikh the Assistant Director, F.IA.
3. Recorded the F.I.R. No,4 of 1990 with the office of the Deputy Director F.I.A., Crime Circle-II, Karachi under section 409/420/468/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947). The contents of the F.I.R. Are "received credible information to the effect that one Fauzi Ali Kazmi, who is an old associate of Mr. Asif Ali Zardari in collusion with him, hatched a plan to defraud Habib Bank Limited, Shaheed-e-Millat Road Branch, Karachi. In pursuance thereof they chalked out a scheme. To set up a parallel Duty Free Shop at a total investment of Rs,300 millions, which Asif Ali Zardari said he would arrange through bank on the condition that he would have 49% share in the business, when it takes off.
4. ' The investment was to be made under the name and style of Globel Marketing Limited.
5. Accordingly feasibility report was got prepared from Furcon & Co. I.I. Chundrigar Road, Karachi which was sent to Ministry of Finance, through Asif Ali Zardari, who got the plan approved by Central Board of Revenue by abusing his position as husband of former Prime Minister.
6. ' Accused Asif All Zardari in collusion with Mr. Safdar Zaidi, the then President Habib Bank Limited and Younas an officer of the Bank got loan of Rs,300 millions sanctioned without getting it properly secured. An amount of Rs,130 millions was drawn from Habib Bank Limited, Shaheed-e-Millat Road Branch, Karachi. With this amount they bought Tax Free Plaza on Shahrah-eFaisal for Rs,30 million and in order to evade taxes, it was registered for 19 millions only. They also bought Al-Hayat Centre on Lawrence Road, Lahore for an amount of Rs,90 millions and got it registered for Rs,40 millions.
7. ' Accused Fauzi Ali Kazmi and Asif Ali Zardari in collusion with each other and with the abetment of Safdar Ali Zaidi the then President, H.B.L. And Younas Habib a Senior Officer defrauded Habib Bank Limited and by deceitful means got sanctioned Rs,300 millions without proper securities and wrongfully withdrew an amount of Rs,150 millions causing loss to the bank and consequential gain to themselves, thereby committed offence under section 409/429/468/471/109, P.P.C. Read with 5(2) of the Prevention of Corruption Act, 1947. Hence this case is registered and investigation is taken up by me".
8. ' The prosecution case is that in September/October 1989 the respondent No,2 was the President of Habib Bank Limited while the respondent No, 1 was the Provincial Chief for Sindh and the respondent No, 5 was the then Minister of Estate for Finance. The allegation is that the respondent No,4 gave an application for starting a Parallel Duty Free Shop with the husband of the then Prime Minister of Pakistan Mr. Asif Ali Zardari and such permission was granted on the orders of the respondent No,5 where after the respondent No,4 moved an application for loan in the name of the Globel Marketing Limited. He had applied for an advance of the loan of Rs,300 millions. Mr. Ajmal Masood Ansari, who at that time was the Manager of Shaheed-e-Millat Road Branch of Habib Bank Limited received telephonic instructions from the respondent No,1 to go to the house of the respondent No,4 and open his account in his Branch. The said Mr. Ajmal Masood Ansari complied with these unusual orders and went to the office of the respondent No,4 taking along with him the account opening form and other relevant documents. There he found the respondent No,4 along with his wife, one Munsif Zaidi and Tariq Umer. It was the first time he had met the respondent No,4.
9. However, he obtained the signatures of respondent No,4 and his wife on the account opening form which was opened in the name of the Globel Marketing which account was to be operated by the respondent No,4. However, the signatures of the two account holders were obtained on the specimen signature card. The respondent No,4 is said to have authorised the said Tariq Umer and Munsif Zaidi to operate the account besides the two signatures. The Account was opened with an initial deposit of Rs, 500 and given an account No,2110-85. Mr. Ajmal Masood Ansari is said to have introduced the clients at the instance of the respondent No,1.
10. ' On the next day (18-12-1989) this Mr. Ajmal Masood Ansari is said to have received a telephonic message from the respondent No,1 directing him to pay Rs,29 millions to respondent No,4 as running finance. He is said to have complied with these instructions and paid 50 lacs in cash to the respondent No,4 on the same day and another amount of Rs,19 millions was paid by a cheque issued by the respondent No,4 in favour of Al-Feroz Construction (Pvt.) Limited from whom profit was proposed to be purchased. On the same day another amount of Rs 50 lacs was paid in cash to the respondent No,4. All the three payments were made through cheques which were produced by Mr. Ajmal Masood Ansari in his evidence. Mr. Ansari was also informed by the respondent No, 1 that the project of the Globe! Marketing had already been approved by the Executive Committee of the Bank and a letter of intent was issued by the Committee. The photo stat copy of such letter of intent has also been produced before the trial Court. It is also the case of the prosecution that before issuing the above said three cheques for advancement to the respondent No,4, Mr. Ajmal Masood Ansari had got the necessary documents executed from the respondent No,4 which are an agreement accrue mortgage, facility letter, promissory note, agreement for finance, letter of hypothecation, letter of pledge, irrevocable general power of attorney and two guarantee forms. All these documents were signed by the respondent No,4 and his wife at the time of the opening the account. The said Tariq Umer and Munsif, who were authorised to operate the account had also signed the said documents. The said Mr.Ajmal Masood Ansari also got confirmation in writing from the respondent No,1 about his telephonic instructions which confirmation has also been produced before the trial Court. It is also the case of the prosecution that in pursuance of further instructions from the respondent No,1, Ajmal Masood had honoured 272 cheques issued by the respondent No,4 in favour of various persons and the last cheque was issued on 2-6-1991.
11. ' The prosecution has contended that on 20-2-1990 another account was opened in the name of the firm registered as Globe! Marketing Limited. This firm had seven directors which include the respondent No,4, his wife, Tariq Umer, Munsif Zaidi, Sabir Chaudhry, Amiruddin Akmal and Shahabuddin Lakhani and Account No, 2130-9 was allotted to this account which is also said to have been opened on oral instructions of the respondent No,1 at the request of the respondent No,4. This time also the said Manager had acted as an introducer of the account under instructions from the respondent No,1 and after 5-6-1990 all transactions were carried on by the Bank with the Globe! Marketing Limited Company in whose favour finance facility to the extent of Rs,26 Millions was approved by the Executive Credit Committee of the Bank. The amount of Rs, 48.888 Millions which had already been advanced but the Globe! Marketing on Account of 272 cheques mentioned above was also transferred to new Account which continued till 2 9-1990 thus, till the date the case was registered an amount of Rs, 143.431 millions was alleged to have been disbursed to the said company against the approved limit of Rs,226 millions. A bulk of 238 cheques was produced before the trial Court. In case of disbursement to the limited company, same set of controlling documents were also got executed on behalf of the Globe! Marketing from the directors of the company which has been registered as a limited company. Mortgage was also registered on 20-8-1990 which is produced before the trial Court which is in respect of a building purchased by the company at Shaheed-e-Millat Road, Karachi and placed at the disposal of the bank as security. The value of this property was assessed by Abdul Ghafar Khan Architect and Engineer as Rs,39.947 millions. The Company also purchased Hayat Centre at Lahore which is for Rs,50 millions which was also mortgaged with the bank at its value as was assessed to be Rs,95.325 millions by Uni Corn International Surveyors. The company also purchased certain vehicles, computer, Air- conditioners and two lifts. It was with regard to above transactions that the Government was informed that the Bank officials respondents for making advances to the Globel Marketing had acted in violation of the banking rules and regulations and caused clossol financial loss to the bank. Therefore, the said FIR was got registered which was investigated by the complainant who seized all the movable articles of the Globel Marketing Limited and the respondents Nos. 1 to 5 were arrested and after completing the investigation challan was submitted before the a trial Court on 23-9-1990.
12. ' The charge against the respondents Nos. 1 to 5 was framed on 14-11-1990 under section 409/420/149, P.P.C. Read with section 5(2) of the Act (II of 1947) to which all of them pleaded not guilty and claimed to be tried. In support of the case the prosecution examined the following witnesses: "P.W.1 Abrar Hussain Naqvi, Member Customs, C.B.R., Islamabad, P.W.2, Ali Safdar Rizvi, Director Finance P.I.A. And Executive Director, Duty Free Shop, Karachi. P.W. 3, Ajmal Masood Ansari, Manager, Shaheed-e-Millat Road Branch of H.B.L., P.W.4, Muhammad Iqbal Azad, Senior Vice-President of H.B.L. Incharge of Syndicated Loans Division at Karachi P.W.5, Muhammad Wasiq Khan, Senior Vice- President of HBL, P.W.6, Israr Ahmad Khan, Circle Executive of Circle 'B', H.B.L. At Karachi, P.W.7, Syed Ale Ali Regional Manager of H.B.L., P.W.8 Sarfraz Usmani, Senior Vice-President H.B.L. Circle E, P.W. 9, Muhammad Younus Dalya, Provincial Chief Sindh H.B.L. And Member, Executive Committee of H.B.L.
13. And P.W.10 Anwar Samad, SEVP, H.B.L. And Member Executive Credit Committee."
14. ' The counsel for the respondents had moved an application under section 249-A, Cr.P.C. Praying for their acquittal for the reasons that none of the above said witnesses had implicated them. The trial Court after hearing the arguments of the counsel for the prosecution as well as defence counsel was pleased to pass the impugned order acquitting all the accused and holding that the properties in the case were owned by the bank as the same were purchased out of the money provided by the bank and that they are entitled to dispose of the properties and appropriate the sale proceeds towards loan advanced to the Globel Marketing Limited with the mark-up. Being aggrieved the present applicants have filed these criminal revision applications.
15. ' We have heard Mr. Qurban Ali Chohan, the Advocate-General, Sindh, who has filed his authority letter in both the Criminal Revision Applications. We have also heard the Advocates for respondents Nos. 1 to 5 while the State is unrepresented. It would be pertinent to reproduce the provisions of section 249-A, Cr. P.C. Which read as under: "249-A. Power of Magistrate to acquit accused at any stage.--Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
16. ' A perusal of the above provisions would show that the Magistrate (in this case the Special Judge) is empowered to acquit an accused at any stage of the case if after hearing the prosecution and the accused, he is of the view that the charge is groundless or that there is no probability of the accused being convicted of the offences with which he is charged and for that he has to record his reasons. In the present case the charge is framed under sections 409/420 and 109, P.P.C. The ingredients of the above sections 409 and 420 are that the prosecution should show that a criminal breach of trust has been committed by the banker which as defined in section 405 means that he should have dishonestly misappropriated or converted to his own use that property which is in any manner entrusted with him or he dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. As regards section 420 the burden is on the prosecution to have shown that the accused have cheated or dishonestly induced delivery of property. Cheating has been defined in section 415 of P.P.C. Which reads as under:-- "415. Cheating.--Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain and property, or intentionally induces the person so deceived, and which act or omission causes or is likely to cause damage or harm to that person or any other person in body, mind, reputation or property is said to `cheat'.
17. Explanation.---A dishonest concealment of facts is a deception within the meaning of this section."
18. ' Section 109, P.P.C. Relates to punishment of abatement of the above acts of criminal breach of trust and cheating. From the bare reading of the above two provisions it would be seen the essential requirements in the case is at least the prima facie establishment of mens rea. In order to apply the two sections prosecution has to show that the accused had acted dishonestly for inducing, the delivery of the loan amount or misappropriating or converting to their use the same that was entrusted to them. Keeping these provisions in mind we proceed to examine the orders passed by the trial Court.
19. ' The trial Court has discussed at length the evidence of the ten witnesses examined by it. The copies of the evidence are also on record of these Criminal revision applications and we have examined the same. It would be pertinent to refer to the evidence of Iqbal Azad, the Senior Vice- President of the bank. In his evidence he states that in February, 1990 he was serving in the same capacity and by end of January, same year a report prepared by Razzaq Umrani, Independent Consultant was placed before him about the appraisal of the Globel Marketing Limited and he was asked to prepare a memorandum based on the report of the Consultant. He drafted the memorandum and submitted the same to the present respondent No,1.
20. ' According to this witness he was asked by the respondent No,1 to put his name and that of Mr. Wasiq Khan, the Senior Vice-President in the same memorandum which he did. The memorandum has been produced as Exh.5/A. This witness admits that the same bears his signatures. This witness in his cross-examination has stated that the credit was being monitored by the Circle Office of the bank and that all the conditions and terms mentioned in the memorandum (Exh.5/A) are according to normal banking business and --- law. This memorandum also bears the signature of the Circle Chief and the Provincial Chief. This witness also states that this memorandum was sent to the Provincial Credit Committee and the members of the said committee have also signed it.
21. The memorandum was then forwarded ter the Executive Credit Committee and the members of that committee have also signed the same. This witness, however, states that the Executive Credit Committee was competent to agree or disagree with the proposal and that consideration of these two committees was purely on commercial basis. He also states as far as this memorandum (Exh.5/A) is concerned the same is based on commercial consideration. Lastly, he states by the end of the year 1989, the Balance Sheet shows that the bank had earned a profit of Rs,95 crores.
22. The next important witness is Muhammad Wasiq Khan, the Senior Vice-President of the bank who has also signed the memorandum (Exh.5/A). In the Examination-in-chief this witness states that this memorandum was approved by the Executive Credit Committee. In the cross-examination this witness states that the monitoring is done through the syndicate loan department of the bank of which P.W. Mr.Iqbal Azad is the Chief. In cross-examination this witness has stated that the loan in question was properly secured because the loan was to the extent of Rs,143 millions while the value of the security was around Rs,150 millions, this witness also states that the expected profit which could have accrued to the bank if it was allowed to continue would have been 70 to 80 millions rupees per year and that to his knowledge no illegality or irregularity was committed in the transaction between the bank and the Globel Marketing. He further states that all transactions in this connection were approved by the competent authority' and that the Bank had not sustained any loss on account of these transactions and that the respondent No,1 did not commit any illegality, irregularity, misappropriation or breach of trust or misconduct in connection with these transactions. He further says the same thing about all other bank officials. A reference may also be made to the deposition of P.W. Syed Ale Ali the EVP of the bank. He was the Vice-President of the bank at the relevant time as General Manager. This witness has also seen the memorandum Exh.
23. 5/A. He states that the memorandum was discussed in the meeting of the Provincial Credit Committee chaired by the respondent No,1 and that this proposal was accompanied by an appraisal report which was found to be O.K. In his cross-examination he states that besides himself 12 other members of Executive Credit Committee had initialled the said memorandum which also bore signatures of P.Ws. Wasif Ali Khan and Iqbal Azad. In his cross-examination, he further states that the project of the Globel Marketing Limited for which the loan was sought was found to be viable and profitable to the bank. He further states that he was in total agreement with the report, of the Consultant and that .Partial disbursement of the loan in anticipation of sanction is also practised by the bank and the client. In his cross-examination he has categorically stated that they were not told by the respondent No,1 that the respondent No,3 had asked them to sanction the loan in violation of any rule or regulation or banking law, practice or procedure. In the last line of his cross-examination he states that if there had been a proposal for sanction for loan in violation of any rule, regulation, banking law, practice or procedure then he would never have been party to the sanction. Same is the evidence of the Senior Vice-President of the Bank, P.W. Israr Ahmed.
24. ' In view of the evidence discussed above it can, safely be concluded that the loan was sanctioned and advanced by the bank after the thorough examination of the proposal which was based on the report of private Consultant. The said proposal was carried through and approved by both the Provincial Credit Committee as well as Executive Credit Committee. The above discussed evidence also shows that the amount of the loan advanced was rupees 143 millions while the value of security was around of Rs, 150 millions which shows that the loan was properly secured. This witness also shows that the project was quite viable and that the bank could have earned a sum of Rs,70 to 80 millions per year in case the project had been allowed to continue. All the bank officials have approved the proposal and put their signatures thereon. Thus, it can be safely said that from this evidence no dishonest act of misappropriation of the said amounts of converting the same to one's personal use or for the purposes other than for which the same was entrusted could be proved. The above discussion also shows that the ingredients of section 415, P.P.C. Have not been proved. This evidence also shows that at least from the evidence that has been brought on the record no case is made out against the respondents Nos. 1 to 5.
25. Now, we come to the remaining witnesses. The order of the trial Court shows that the prosecution had urged that the evidence of remaining witnesses should also be recorded. Much emphasis was laid on the evidence of the Magistrate who is said to have recorded the confession. The above discussion would show that all the material witnesses had been examined. The only remaining witnesses were the Investigating Officers and the Magistrate who has recorded the confession. As far as the evidence of the Magistrate who has recorded the confession, we are of the view that the trial Court has correctly dealt with the same. A statement was made at the bar that confession of only one of the respondents namely, Fouzi Ali Kazmi, the respondent No,4 is said to have been recorded. It was also stated at the bar that this respondent No,4 while in detention had suffered dislocation of shoulder bone and was provided treatment under the directions of ,this Court when a Constitution petition in this respect was filed. The inference from this could easily be made that this witness was subjected to torture while in detention and, therefore, any confession recorded by him in such circumstances could not be used against him. The trial Court very rightly observed that the confession, if any, would be a retracted confession ant it is settled law that such confession would require a very strong independent corroborative evidence to accept the same whereas in the present case not a single witness as discussed above has supported the case of the prosecution.
26. Rather it is shown that the bank officers have acted prudently in the interest of the business of the bank by accepting the viable project and advancing loan, therefore, it would bring them a profit of about Rs,70 to 80 millions per year.
27. The result, thus, is that we are of the view that there are no reasons for us to interfere with the orders passed by the trial Court. The present Criminal revision applications are accordingly dismissed.
28. ' Above are the reasons for the slit order announced on 19-9-1994 in Court.