1. ' RANA BHAGWAN DAS, J.--- The petitioner who is a British Citizen, carrying on business in Hotel Industry and one of the Directors of the Fine English Hotels Ltd. And The Whites and Whites Ltd. (now changed to Western Europe Company Limited) incorporated in England seeks the quashment of proceedings in Case No,31 of 1990 State v. Safdar Abbas Zaidi and others pending before the Special Court (Offences in Banks) Karachi under sections 420, 468, 471, P.P.C. And section 5(2) of the Prevention of Corruption Act read with section 109, P.P.C.
2. ' It is the case of the petitioner that he is a permanent resident of England carrying on his business over there. He has never resided in Pakistan and never held any temporary or permanent address in this country. Habib Bank Ltd. London is engaged in business in London and their working is regulated under the British Laws. The said Bank by a contract, dated 18-4-1990 lent pounds sterling 50,00,000 to The Fine English Hotels Limited London, by another contract on 17-5-1990, the said Bank lent pounds sterling 81,00,000 to the Fine English Hotels Limited while on 19-7-1990 the Bank provided a loan of pounds sterling 40,00,000 to The Whites and Whites Ltd. It is further the case of the petitioner that both these Companies were dealing in Hotel Industry and making payments to the Bank regularly, but unfortunately due to the Gulf War, the Hotel Industry in England in the financial year ending on 31st January, 1991 was hit hard. Almost all the leading hoteling groups suffered extensively and there was a sharp down turn in the hoteling trade. A large number of Companies in Britain were liquidated. In these circumstances both the Companies named above approached the Habib Bank Limited for rescheduling of the loans, due to unavoidable financial crisis but the bank failed to comprehend the sitaution with the consequence that The Whites and Whites Limited (now changed to Western Europe Company Limited) went into liquidation. While these Companies were negotiating with the Bank for rescheduling of loans the Bank never communicated to them whether any criminal litigation was in progress in Pakistan in any Court.
3. Ultimately the petitioner came to know that on 4-9-1990 an F.I.R. Was recorded at Police Station F.I.A. Karachi on the statement of Mr. Zafar Iqbal, Joint Secretary, Ministry of Finance, Government of Pakistan, Islamabad under section 420/468/471, P.P.C. And section 5(2) of Act II of 1947 against Asif All Zardari, M.NA. Safdar Abbas Zaidi, President Habib Bank Limited and the petitioner. After the registration of the F.I.R. The F.IA. Put up a challan against the petitioner and two others named above, showing him as an absconder. It is the grievance of the petitioner that he had never received any notice of summons of the case and holding him as an absconder was based on incorrect, false and misleading statements. After the examination of six witnesses at the trial, accused Asif Ali Zardari filed an application under section 249-A, Cr.P.C. Which was dismissed on 25-4-1991. He then filed Criminal Miscellaneous Application No,150 of 1991 in the High Court of Sindh and a Division Bench of this 'Court on 26-9-1991 quashed these proceedings against him. In the said judgment it was held that the charge against the applicant was groundless and there was no likelihood of his being convicted even if the trial was allowed to conclude and prosecution permitted to lead the evidence of the remaining witnesses against him. This judgment has been reported in 1992 PCr.LJ 59.
4. ' It is pertinent to note that the State filed Criminal Petition for Leave to Appeal No,75 of 1991 from the said judgment of the Sindh High Court before the Supreme Court of Pakistan which was dismissed and the Leave to Appeal was refused vide Order dated 24-1-1994.
5. ' The latest position of the trial now is that remaining co-accused namely Safdar Abbas Zaidi has also been acquitted by the trial Court under section 249-A, Cr.P.C. Vide order, dated 30-4-1994 and so far no acquittal appeal has been filed by the State.
6. ' We have heard learned counsel appearing for the petitioner and the Advocate-General on behalf of State.
7. ' Learned counsel appearing for the petitioner has contended that this was a case of Commercial Civil Transaction between the petitioner and the Habib Bank Limited and there was no mens rea or a criminal intention to commit a fraud upon the Bank. Indeed Habib Bank Limited has initiated civil proceedings, for recovery of the loan amounts with costs, interest, mark-up etc. In the High Court of Justice Queens Bench Division England on 25-6-1992 and got a writ of summons issued against both the Companies. He has pointed out that both the Companies had furnished valuable security and collaterals to the Bank before availing of the loan amounts which documents in England under the British Laws are valued by Chartered Surveyors of the Bank and all such cases handled by the SolicitoRs, He has placed on record the writ of Summons and Statement of Claims issued by the High Court of Justice in England to show that during the pendency of civil proceedings for recovery of loans against the instant prosecution was completely misconceived and motivated by malice and undue harassm ent to the petitioner who is not amenable to Pakistan Laws.
8. ' Learned counsel has further pressed into service his argument to the effect that at no stage has the Habib Bank Limited alleged an act of fraud or cheating against the petitioner or suffering any loss on account of the above loan transactions.
9. ' There is a considerable force in the contention raised by learned counsel for the petitioner which has not being controverted by learned Advocate-General appearing for the State. In the face of civil proceedings pending against the petitioner and other Directors of the two Companies in the High Court of Justice Queens Bench Division London it is highly doubtful whether the petitioner can be prosecuted in Pakistan for cheating the Bank or fabricating false documents. Needless to point out, the main accused in the case have been acquitted by the High Court as well as the trial Court, therefore, the petitioner cannot be tried on the aforesaid charge. Apart from the circumstance that the petitioner is a British national and the transactions in respect of sanction of loans and the documentation therefor took place in England, the continuation of proceedings against the petitioner would definitely amount to abuse of process of Court which cannot be allowed to perpetuate. In a somewhat similar situation a Division Bench of this Court acquitted the appellant on a charge under section 420, P.P.C. Holding as under:-- "22. To establish the case under section 420, P.P.C. There must have been clear evidence to the effect that the appellant had a guilty mind from the very outset, which evidence as observed earlier, is lacking in this case. In fact a simple case of breach of contract was turned into a criminal case just to put pressure upon the appellant so that he may repay the loan. It may be added that the parties have already resorted to civil litigation. We think that the general proposition of law is well-settled that a broken promise by itself does not bring the case within the mischief of cheating.
10. In the elegant words of Newsam, J., expressed in M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai, reported in AIR 1938 Mad. 129:- 'In the world of business things are often done which are betrayals of confidence and deceptions which arouse moral indignation but are nevertheless Civil wrongs which can be righted by Civil Courts and are not crimes which can be punished by a Criminal Court. Not every immoral act is criminal and it is an abuse of the process of a Court to attempt to create new crimes in order to compel men to conform to a high standard of probity in business dealings or to force them to execute their premises'."
11. ' This judgment is reported in 1992 PCr.LJ 141.
12. Respectfully following the dictum laid down in the above authority, we are inclined to hold that the proceedings against the petitioner clearly tantamount to abuse of the process of Court which are liable to be quashed in the circumstances and in order to secure the ends of justice.
13. ' Assuming for the sake of argument, the prosecution is allowed to lead the evidence at the trial against the petitioner, at any rate the trial is not likely to entail the conviction of the petitioner in view of the fact that the main accused stand acquitted of the charge. It is for these reasons that learned Advocate-General also conceded to the quashment of proceedings; which were quashed by a short order at the conclusion of the hearing on 17-7-1994. These are the detailed reasons for the quashment of the proceedings.