JUDGMENT RAJA ABDUL AZIZ BHATTI, J.- This order will dispose of Writ Petition Nos.
1361/94,1362/94,1376/94 and 1377/94 filed by the petitioners.
2. Through the aforesaid petitions and Criminal Misc: the petitioners have sought:
(a) Quashment of FIR No. 12/94 dated 10,.11.1994 registered at Police Station F1A/SIU, Islamabad, under sections 419, 420, 468, 471 and 109 PPC, under section 5(2)47 of. Prevention of Corruption Act and Article 3 of Holder of Representative Offices (Punishment for Misconduct) Order 1977;
(b) FIR No. 13 of 1994 dated 12.11.1994 registered at Police Station FIA/SIU, Islamabad, under sections 419, 420, 468, 471, 109 PPC, section 5(2) 47 PGA and Article 3 of Holder of Representative Offices (Punishment for Misconduct) Order 1977;
(c) The petitioners have also sought pre-arrest bail in these cases.
3. Brief facts of case FIR No. 12/94 dated 10.11.1994 are that an inquiry was held by the FIA/SIU, Islamabad, under Federal Investigation Agency Act, 1974, during which transpired:
(i) that on 26.08.1992 fake account in the name of one Sulman Zia, resident of Main Bazar, Sahiwal, was opened in Habib Bank Limited, AG Zurich, Lahore, with an initial deposit of US $ 168;
(ii) that fake account in the name of Muhammad Ramzan resident of House No. 5, Street No. 6 of Sant Nagar, Lahore was opened in Habib Bank Ltd. AG Zurich, Lahore, with initial deposit of US $ 300.
Subsequently, both of them were issued dollars bearing certificates worth US $ 750,000/- cash by Union Bank Ltd. Against cash proceeds of Travellers Cheques encashed through American Express, New York; (i.e) that a fake account was also opened in the name of Kashif Masood Qazi (A/C No. 260133-91) in the Bank of America by having transferred the amounts of aforesaid two fake accounts;
(iv) that another fake account No. 199936-091 in the name of Mrs. Nuzhat Gohar Qazi were of Gohar Masood Qazi, resident of Nishbat Road, Lahore was opened in the Bank of America. Ultimately, approximately an amount of US $ 0 J million was transferred to the account of Kashif Masood Qazi from the account of Mrs. Nuzhat Gohar Qazi.
The aforesaid accounts were found to be fictitious. The Directors of M/s. Hudabiya Engineering (Pvt)
Ltd. In collaboration with the bank officials of Habib Bank limited, AG Zurich, Lahore and Bank of America, Lahore, under the influence of Mian Muhammad Nawaz Sharif (former Prime Minister), dishonestly and fraudulently managed to open aforesaid fake accounts/benomu for subsequent creation of loan amount to Rs.60 millions by the Bank of America, Lahore, in favour of the said Company, against the fake account of Kashif Masood Qazi. All these under and methods were adopted to utilize their black money for securing wrongful gains.
As a result of the aforesaid enquiry, the accused committed offence punishable under the aforesaid penal sections of law and the case was registered against the directors of M/s. Hudabiya involving the following persons:
(i) Mian Muhammad Sharif.
(ii) Mian Muhammad Abbas Sharif.
(i.e) Mian Hussain Nawaz.
(iv) Abdul Hameed Butt.
(v) Mukhtar Hussain and some others.
4. Brief facts of FIR No. 13/94 are that it was registered on 12.11.1994 at Police Station FIA/SIU, Islamabad, under sections 419, 420, 468, 471,109 PPC under section 5(2) 47 PCA and Article 3 of Holder of Representative Offices (Punishment for Misconduct) Order, 1977. The investigation of this cas6 is in progress which is yet to be completed. However, before the registration of this case allegedly an inquiry was conducted against the accused in connection with M/s. Hudabiya Paper Mills (Pvt) Ltd. And about fake accounts No. 202120-106578 and 202120-106585 etc. Which were opened in Habib Bank Ltd. AG Zurich, Lahore, in the name of Muhammad Ramzan and Asghar Ali by depositing traveller cheques amounting to US $ 0.2 million each in these accounts. Later on, at the request of these so-called accounts holders, Dollar Bearer Certificates US $ 0.2 Million each were issued by the Bank.
5. After some time, another fake foreign currency account No. 5816279102 was opened in Citibank, Lahore, in the name of one Mrs. Sikandara Masood Qazi by depositing DBCs (Dollars Bearing Certificates) amounting to US $ 0.150 million in the said account. Later on, DBCs amounting to US $ 1.00 million were also deposited in this account.
6. The important fact in this case is that Citibank, Karachi, created a loan of Rs. 40 million in favour of M/s. Hudabiya Paper Mills in view of account of Mrs. Sikandara Masood Qazi but against inadequate security including hypothecation. This loan in the Citibank, Karachi, is still outstanding.
7. This inquiry further reveals that M/s. Muhammad Ramzan, Asghar Ali and Mrs. Sikandara Masood Qazi were not traceable at the given addresses. It has been brought to the notice of the Court that Muhammad Ramzan is a fake person who does not exist. As far as Mrs. Sikandara Masood Qazi and Asghar Ali are concerned, since prior to the opening of the aforesaid fake accounts, they never came to Pakistan. Thus, their names have been used for wrongful gain. The FIA is of the view that the Directors of M/s. Hudabiya Paper Mills with the blessing of the former Chief Executive of the country (Mian Muhammad Nawaz Sharif) not only involved themselves in money loundering but also cheated the Government for their personal wrongful gain. As such, under aforesaid penal sanctions of law, this case FIR No. 13/94 was registered against the directors of M/s. Hudabiya Paper Mills involving the following persons as accused:
(i) Mian Muhammad Sharif.
(ii) Mian Shahbaz Sharif.
(i.e) Mian Abbas Sharif.
(iv) Mian Hussain Nawas.
(v) Mian Humza Shahbaz, two ladies and some other persons.
8. The cases are still under investigation. The investigating agency is presently probing into the matter and collecting evidence with a view to prepare challan against the accused for their trial by the Court of competent jurisdiction. In these cases Mian Muhammad Sharif was e: rested by FIA on 17.11.1994. He was later on released on bail because of his sickness. No other accused has so far been arrested. The present petitioners filed writ petitions with a prayer that FIRs Nos. 12/94 & 13/94 dated 10.11.1994 and 12.11.1994 respectively, by declared to be mala fide, illegal, without law-ful authority and of no legal effect. It has further been prayed that pending final decision of these petitions the proceedings/investigations by FIA be stayed for the ends of justice.
Along with the constitutional petition, Crl: Misc. Have also been filed for seeking pre-arrest bail.
9. On 07.12.1994, the Hon'ble Single Judge of this Court passed an order for placing these petitions before the Division Bench and granted ad interim relief to the effect that the petitioners should not be arrested till then. On 08.12.1994, the matter came up for hearing before the D.B. Notice was issued to the investigating officer to produce record of the case for disposal with further direction that the petitioners would not be arrested meanwhile.
10. All these matters pertaining to FTRs No. 12 and 13 of 1994 were heard together, hence being disposed of through this single order. Learned counsel for the petitioners addressed the Court and put forward the following contentions for quashment of both the FTRs:-
(a) that the very registration of the case is mala fide, in facts as well as in law,
(b) that sections 3, 4 and 5 of the Protection of Economic Reforms Act, 1992 bar the registration of these cases;
(c) that the cases are of no evidence. There is no material with the investigating agency to make out any criminal case against the accused. The matter is purely of a civil nature involving transaction of granting and obtaining loan;
(d) that the counsel for the petitioners are of the view that if the aforesaid money transaction involves any breach of Income Tax Law, the matter at the most can be enquired into by the Income Tax Authority and not by FIA;
(e) the petitioners/accused were not associated with the enquiry proceedings conducted by FIA for the registration of case. Their non- association has vital importance. It resulted into mis- carriage of justice and thereby edifice of legal mechanism built by the prosecution of involve the petitioners falls down. It has denied the opportunity of being heard.
11. In support of the aforesaid contentions, he vehemently tried to refer certain facts and documents. We would like to make full efforts to enumerate and discuss these submissions to find out the pith and substance thereof and then- effect with reference to the prayer made before this Court.
12. The first contention of the learned counsel for the petitioners is that there are no complainants in these cases. Both the cases have been registered by FIA on their on accord having na cognizable complaint from any-one. FIA was directed by superior authorities to take cognizance and hold an enquiry with a view to register these cases. According to him, it can be said that the child had taken birth without mother as the cases had been registered without complainants. He maintained that non-disclosure of the complainant would mean that the Federal Government specially, its higher authorities were interested to involve the leader of opposition and his family members for political ends. Otherwise, there was no need to adopt an abnormal method for the registration of cases.
13. He further argues that since from the date present Government came into power, number of FIRs have been registered in different police stations in which directly or indirectly this family has been involve9. The only motive is to harass them with a view to compel them to surrender before the wishful desires of the present Federal Government/Ruling persons and to restrain from criticising the national and international issues of the present Government. He maintains that the alleged fake enquiry depicts rare phenomenon. In reality no enquiry was held.
14. Regarding mala fide, the learned counsel Ch. Muhammad Faruq stated that M/s. Hudaybia had an agreement with the account-holders for the creation of loan. At that moment, when this sentence was used by the learned counsel, he was directed by the Court to submit the copy of the agreement. On which he immediately made little departure and said that the some arrangement existed between these account-holders and M/s. Hudabiya, since there was no written agreement, the copy thereof could not be placed before the Court. Here it may be mentioned that a note about this admission of having arrangement with the aforesaid account-holders was recorded with a prior caution to the learned counsel and with his consent. Inspite of that he repeated that there was an arrangement of M/s. Hudabiya with the alleged account-holders. By this admission he wanted to make out a point to support the contention of mala fide that loan amounting to Crores of rupees was obtained by M/s. Hudabiya lawfully. According to him it was a money transaction and the contractual liability between certain persons, having not caused any wrongful gain a wrongful loss to anyone. He vehemently stated that the accounts-holders and the concerned bank are the consenting parties in the matter. Hence there could be no fraud, dishonesty or cheating on the part of any accused. There is no mensrea, hence criminal proceedings are hot only bad in law but also it is a case of harassm ent pure and simple, which can be termed as un-authorised action based on mala fide.
15. As regard the mala fide in law, the learned counsel referred to Sections 3, 4 and 5 of the Protection of Economic Reforms Act 1992. He is of the view that the Protection of Economic Reforms Act 1992 is a special law which overrides other laws including Custom Act, Income Tax Ordinance etc. Sections 3, 4 & 5 of the Protection of Economic Reforms Act, 1992 are re-produced as under:-
3. Act to override other laws.
"The provisions of this Act shall have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947 (VII of 1947), the Customs Act, 1969 (IV of 1969), the Income Tax Ordinance, 1979 (XXXI of 1979), pr any other law for the time being in force".
4. Freedom to bring, hold, sell and take out foreign currency.
"All citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons shall be entitled and free to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall any one be questioned in regard to the same".
5. Immunities to foreign currency accounts.
"(1) Alt citizens of Pakistan resident in Pakistan or outside Pakistan who hold foreign currency accounts in Pakistan, and all other persons who hold such accounts, shall continue to enjoy immunity against any enquiry from the Income Tax Department or any other taxation authority as to the source of financing of the foreign currency accounts.
(2) The balances in the foreign currency accounts and income therefrom continue to remain exempted from the levy of wealth tax and income-tax and compulsory deduction of zakat at course.
(3) They banks shall maintains complete secrecy in respect of transactions in the foreign currency accounts.
(4) The State Bank of Pakistan or other banks shall not impose any restrictions on deposits in and withdrawals from the foreign currency accounts and restrictions, if any, shall stand withdrawn forthwith.
16. He read out repeatedly the aforesaid three sections of the Act and made full use of his professional skill to convince the Court. According to him law:-
(i) Bars the registration of the cases against the petitioners etc.
(ii) Vests with the right to deal in the foreign exchange as they like.
(ii) They are at liberty to open foreign exchange account in the Bank, deposit the amount or withdraw it with complete facility of bringing in and taking away from Pakistan.
17. He submits that section 3 provides complete liberty having were scope for anyone in lending and borrowing amount under the terms and conditions agreed upon between the parties. No inquiry whatsoever can be made, what to say the registration of the cases like the present.
18. A legal objection has also been raised that allegedly an inquiry was held in the present case before the registration of cases FIR No. 12 and 13. He maintains that it is compulsory for the respondents to associate the petitioners with the inquiry proceedings with a view to provide them opportunity to be heard and prove their innocence but they have not been associated intentionally as the so-called inquiry has been designed to involve the members of Mian Nawaz Sharif family. In support of these contentions the following judgment was relied upon by the learned counsel: Rees and others Vs. Crane (1994 S.C.M.R. 1682)
19. Contention-the cases are of no evidence. The learned counsel for the petitioners contended that M/s Hudabiya obtained loan of a few Crores of rupees against the accounts opened in the name of Kashif Masood and others in case FIR No. 13/94 Mrs. Sikandara Masood and others in case FIR No.13.94. According to him this was a simple money transaction between the parties that is to say M/s. Hudabiya, aforesaid account-holders and the bankers voluntarily and with each other's consent. There is no question of committing fraud and cheating in the affairs. Federal Government or investigating agency has no right to interfere therein. The petitioners are at liberty to utilize their wealth in the manner as they like. If there is any objection to some Governmental authority with regard to the income tax affairs, the matter can be looked into by the income tax authority, but only after adopting the procedure prescribed and laid down therefor in the Act. According to him, no notice was ever issued by the income tax department to the accused. The registration of cases is bad in law. With this back-ground, he submits that no document or oral evidence can be made basis for initiating criminal action. According to him, the transactions are of civil nature. He states that these cases are of no evidence and for that the FIRs are liable to be quashed. He relied upon the following judgments:- Muhammad Akber Versus The State (PLD 1968 SC. 281), Shahnaz Begum Versus. Hon'ble Judges of the High Court of Sind and Baluchistan (PLD 1971 SC 677), Ameer and others Versus. Station House Officer (1988 P.Cr.L.J. 2032), Polak Naz Versus The State (1990 P.Cr.L.J.
798, Muhammad Haroon Versus Federation of Pakistan (1991 M.L.D. '397), Mst. Shabana Chaudhry Versus Station House Officer Police Station Akbari Gate Lahore and for others (PLD 1993 Lahore 416), Muhammad Azam Versus Fazed Haq Raja and others (NLR 1994 Criminal 666), Allied Bank of Pakistan Limited Versus Khalid Faruq (1991 SCMR 599), Altaf Hussain Versus. The State (PLD 1985 Lahore 10), Muhammad Yaqoob Ali Versus The State (PLD 1985 Lahore 48).
20. Regarding last contention, he has stated that penal sections mentioned in the FIRs, are not applicable as no cheating, dishonesty and fraud has been committed. The transactions were bona fide, having complete legal protection provided by law.
21. In reply to the contentions raised by the petitioners' counsel, the learned DAG submits the following propositions for consideration:-
(a) He has produced and shown to this Court account opening form for foreign currency saving account No. 202120-1065 dated 26.08.1992. It has certain columns and paragraphs. In column 'Full Name' Muhammad Ramzan is written and in column of 'Address' his address is mentioned as House No.5 Street No.6, Sant Nagar, Lahore. In the form there is column to be signed by the introducer with name and address which is vacant, besides the column wherein the applicant's Passport number and other particulars are to be written, is also lying vacant. The portion meant for bank use, the initial deposit received US $ 300/- and cheque book bearing cheques No.003151 to 003175 was also issued. But on the top of. It in block letters words 'No Correspondence' is written.
The contents of this form and the signature thereon have been alleged to be in the name of Muhammad Ramzan providing reason to say they entries are fake and forged, Muhammad Ramzan is a fake person. The agency tried to search him out on the given address but according to information and report of the agency the so called Muhammad Ramzan, never lived at the given address and has no concern whatsoever there.
(b) Similar is the case of account No.2023120-106-651 in the name of one Sulman Zia. The address is only Main Bazar Sahiwal. The form bears Urdu signature and other columns have been left vacant. From the particulars of address as mentioned in the form speaks volume of its fake and forged nature. The account has been found not only fake but Sulman Zia is also like Muhammad Ramzan, a fake person. This version of fake-ness gets further support from the letter dated 26.10.1992. The address as given Habib Bank A.G. Zurrich, 99- Madison Avenue, New York, U.SA.
Which contains the advice and credit for US $750,000/- to Union Bank Ltd. Lahore for issuance of DBCs from Lahore Branch. This letter supports the nature of the allegations made in the FIR.
Identical facts are mentioned in another letter dated 25.10.1992 addressed to M/s. Union Bank Ltd., Egerton Road, Lahore by Habib Bank AG Zurich, Lahore. Both these letters were read and considered with reference to Habib Bank AG Zurich letter of Dated 25.10.1992 which contains the Subject "Issuance of DBCs for US $ 750,000/- A/C M/S. Muhammad Ramzan and Sulman Zia for US $ 750,000/- (Total 1.500 Million)". According to prosecution, the signatures on this letter dated 25.10.1992 are different as compared to the signatures of the aforementioned two letters and the account opening forms. The prosecution has further produced table containing the details of traveller cheques Nos. Issued in respect of Muhammad Ramzan and Sulman Zia. Which bears signatures of Syed Wajahat Hussain for Habib Bank AG Zurich dated 31.10.1994. The cheque numbers, foreign currency account US dollars and the amount deposited by the aforesaid alleged account-holders in their Foreign Currency Account. The collection of the travellers cheques made through American Express Bank Ltd., New York. All these connected affairs make the matter further dear that all these letters and table were fabricated in the name of fake or un-known person with a design and that could be nothing else but plundering amount by unfair means. The learned Deputy Attorney General has further placed account opening forms, allegedly issued in the name of Kashif Masood bearing No.260133-091 with some particulars involving US $ 1,500,000/-. Particulars and address mentioned in the forms does not disclose the complete identity of Kashif Masood. Thus it is not possible to find out as to whether he is a person in existence or not. However the investigation so far carried out, reveals that 'Kashif Mehmood' name has been used in a fake manner. This form, placed on record deals with the DBCs of Kashif Masood issued on 26.10.1992. It shows that Union Bank issued/made DBCs deposit and an amount of US. $ 1,500,000/- Photo stat copy of the first page of passport has been placed before the Court by the prosecution, which was issued by United Kingdom in the name of Kashif Masood Qazi. But the signatures on this pass port (photo copy) and the on the account opening form are totally different. Even report of the hand writing expert supports the prosecution version as the signatures have no similarity with each other. A few other documents have also been shown to the Court including telex message from Dy. Director FIA to the Director FIA, Islamabad regarding Kashif Masood Qazi and Mrs. Sikandara Masood Qazi stating that these persons never entered in Pakistan since 1.1.1992 to 5.11.1994. The learned DAG emphasized that from these reports and documents it has become, evident that either these persons are fake and simply their names have been used by the miscreants or at least Kashif Masood Qazi and Mrs. Sikandara Masood Qazi never came to Pakistan during the period in question ile. Period of opening of accounts till the date of registration of the cases. The contention of the learned counsel for the petitioners that M/s. Hudabiya had either an agreement or some arrangement with the aforesaid account-holders looses any sanctity obviously for the reasons that account-holders are fake persons and account opening forms were filled in by committing forgery in the names of aforesaid persons. He emphasizes that these fake and dummy drill of opening accounts with a view to show lawful money transaction of foreign exchange is a grab under which black money. Valuing Crores of rupees has been made white under the influence and in collusion with others by the a accused. All these acts indeed are punishable under the penal sections of law as mentioned in the FIRs. Account opening form issued by Habib Bank AG Zurich dated 26.08.1992 in the name of I Asghar Ali has also been shown to this Court. The address of Asghar Ali as mentioned in the form is, I-Fane Road, Lahore. The investigation reveals that Asghar Ali never lived in this house and came to Pakistan. According to him fake name has been used for the commission of crime. In addition to this, another account opening form dated 26.10.1992 showing the name of Muhammad Ramzan has also been placed with reference to FIR No. 12. This form pertains to the transactions made by the Directors . M/s. Hudabiya Paper Mills, Ltd., who opened the account bearing no.0819802017 in Citibank. This account number was used for obtaining the loan by M/s. Hudabiya Paper Mills, Ltd. Under the veil and garb of fake account holders. He has also placed on record an account opening application of Citibank, allegedly in the name of Mrs. Sikandara Masood Qazi. The address as written is only C/o. 7-H, Gulberg-UI, Lahore. The amount stood deposited is the same which has been referred above. The signatures on all these papers, allegedly in the names of fake account-holders are not identical. It shows that all the measures were adopted by M/s. Hudabiya Paper Mills Ltd. (the Directors and Share-holders) to commit fraud and cheating with a view to have wrongful gain for themselves and loss to the State. To achieve this criminal end they used fake names. The ample proof whereof is the admission of the learned counsel for the petitioners, when he admitted that M/s. Hudabiya had arrangement with the afore&mentioned account- holders for creating loan.
(d) Learned Law Officer further submits that investigation is in progress, number of documents are to be collected! From the different departments, banks and organizations. Oral statements of PWs will also be recorded concerning these cases. At this stage, quashment of the case/FIRs shall be detrimental to the ends of justice. In the presence of aforesaid material/evidence gaging and throttling the continuity of the investigation, wdl hamper the lawful action being taken by the Federal Investigating Agency.
(e) While replying the contention of mala fide in fact raised by the learned counsel for the petitioners, the learned DAG states that the prosecution version is that the evidence so far collected is sufficient to negate mala fide. The action cannot be dubbed as mala fide simple for the reasons that opposition leader, former prime minister of the country, a MNA and few members- associates of his family are -involved in this case. A heavy amount is involved. According to the learned DAG the accused are raising high voice of mala fide, with a mala fide design for saving their skins from the penal action, which law designs for the criminals who indulge in such like criminal activities. At the most, in the given circumstances, the plea of mala fide can be adjudged only after recording the evidence by the trial Court and not at this stage.
(f) While dealing with the mala fide in law the learned DAG vehemently opposed the contention by saying that any legal protection of law ends where criminal activities start. Sections 3,4 and S of the Protection of Economic Reforms Act 1992 do not extend the liability to facilitate the commission of crime. He emphasizes that crime has been committed with a view to make black money, hoarded in clandestine manner, white by creating so called loan transaction.
(g) Failure to associate the petitioners with the inquiry proceedings conducted by the FIA under Section S of the Federal Investigating Agency Act 1974 has no adverse bearing in the eyes of law. It is not a mandatory requirement of law to have the petitioners associated in such like inquiry which precedes the registration of the case. After registration of case investigation has Since been started. The petitioners shall have full opportunity to join the investigation. They are to be arrested with a view to interrogate them and in that course they mil be provided due opportunity to produce their defence evidence. He has also drawn our attention to the provisions of Section 202 Cr.P.C, which deals with such like inquiries for summoning the accused in a private complaint before the Magistrate. There are number of judgments given by the Superior Courts of Pakistan, wherein Hon'ble Judges deprecated the association of persons complained against in the enquiry proceedings held under Section 202 Cr.P.C. Nowhere in the FIA Act it is mentioned that Federal Investigation Agency is bound to associate the accused complained- against with the enquiry proceedings.
(h) Agitating further the learned Law Officer, is of the view that enquiry is conducted prior to the investigation and after the registration of cases. The investigating Officer can associate the accused with the investigation by providing him the opportunity to explain his point of view and prove his innocence. Presently, the easels are under investigation. There will be no hesitation on the part of the Federal Investigating Agency to associate the accused during investigation and in fact for that purpose their arrest is needed. He relies upon the following judgments:- Mst. Allah Bandi Vs. Dr. Irshad Malik CSP District Magistrate Sargodha and others (1969 P.Cr.L.J. 547) Muhammad Saeed and three others Vs. The State and others (PLD 1984 Lahore 323) and Khalid Masood Sub-divisional Officer WAPDA Vs. The Assistant Commissioner and others.
(PCr.LJ. 1984 1612)
22. With these submissions, the learned Deputy Attorney General maintains that it is a case of strong evidence, there is no mala f ide infact or in law and no illegality has been committed in the registration of the cases. There is sufficient material on the record and investigation is still in progress to collect more evidence whereafter the challan will be put up for trial. He prays that the petitions may be dismissed because it is not a case of quashment in any manner.
23. At this stage, judgment dated 18/19.12.94 given by his lordship Mr. Justice Ch. Khurshid Ahmed, was produced by the learned Law Officer. With a view to persuade this Court with reference to FIR No. 12, he states that the matter in issue has already been decided against the petitioners in writ petition No. 14532/94. The judgment and the copy of the writ petition are on the record. The attention of this court has been drawn to certain paragraphs of the writ petition and prayer made by the writ petitioners and even certain paras have been read out from the judgment which contain adjudication regarding the contents of the FIR. While raising objection, he maintains that in the presence of this judgment the writ petitions being argued to quash FIR No. 12 is not maintainable. Another principle of law has been propounded by the learned Law Officer that writ petition decided by Hon'ble Mr. Justice Ch. Khurshid Ahmad must be taken to have included complete relief. In case writ petitioner failed to mention complete cause of action and relief which was available to him, then, Order 11, rule 2 CPC bars the present writ petition. He further submits that the judgment given by the Hon'ble Judge may be taken at least a judicial precedent which fully applies in the present circumstances and thus the edifice of legal mechanism put forward for the quashment of the FIRs falls down. In support of his submissions, he relies upon the following judgments:- Benedict F. D' Souza Vs. Karachi Building Control Authority (1989 SCMR 918), Haji Allah Ditta Vs. State (1987 P.Cr.LJ. 1), Mst. Manzooran V SHO. (1991 P.Cr.LJ 665), A. Habib Ahmed Vs. M. KG.
Scott. Christian etc. (PLD 1992 SC 353)/is/ Ali Zardari Vs. The State etc (1992 P.Cr.LJ.58), The State. Vs Asif Ali Zardari etc. (1994 P.S.C. (Cr) 317), Brig. (Retd.) Imtiaz Ahmed versus Government of Pakistan through secretary etc (1994 SCMR 2142).
24. Regarding bail matter he prays that at this stage granting pre-arrest bail to the accused/petitioners will not only obstruct the administration of justice but it will also hamper the investigation.
25. Section 5 is a special clause for the offences in respect of the Banking Ordinance 1994. The accused shall not be released on bad, if there appears reasonable ground for believing that he has committed an offence mentioned in the schedule. This provision makes much departure from the category of offences mentioned in section 497 Cr.P.C. Section 497 is tagged with clog of quantum of sentence i.e. 10 years R.I. Or more for the offences of prohibitory clause. For the Bank offences the condition of sentence of 10 years R.I. Or more is not mentioned. The Court is simply required to find out as to whether there are reasonable ground to believe that scheduled offence has been Committed.
26. We have heard the arguments of the learned counsel for the parties and perused the record.
We have also gone through the documents and oral statement placed or shown to the Court.
27. It is a matter of principle that FIR can be quashed on the following grounds:-
(i) that the registration of the FIR is mala fide, in fact or in law,
(ii) that it is a case of no evidence; (i.e) that the matter is of civil nature, while the criminal proceedings have been adopted with a view to harass the accused for ulterior motive;
(iv) that there are some serious jurisdictional defects which bars the registration of the case and restrain the court to take cognizance; and
(v) that undue delay occurred in the matter of final adjudication causing hardship to the accused, specially when he, himself is not responsible for the delay of the proceedings.
28. The pivotal question in this case is, as to whether the prosecution has some prima facie case to proceed against the petitioners/accused party. We have no hesitation to say that the prosecution has strong prima fade case to prove that foreign exchange account-holders mentioned above are fake persons. Their names have been used for opening the accounts. This fact if stands proved during the trial, it is bound to reflect on the conduct of M/s. Hudabiya, specially under the circumstances when loan obtaining account was opened by M/s. Hudabiya with a view to obtain so called loan amount in lieu of the foreign currency accounts opened in the names of fake persons. The beneficiary is M/s. Hudabiya in the aforesaid transactions then it will be futile on the part of the learned counsel for the petitioners to argue that it is a case of no evidence. A citizen of Pakistan has protection of law in case, he opens foreign exchange account having the facility provided by the Protection of Economic Reforms Act, 1992, but cannot avail the protection of law with a view to make his black money as white by adopting the process of opening fake accounts, mentioned above. We, therefore, maintain that the prosecution has prima facie case to substantiate the allegations levelled against the accused.
29. As far as the mala fide in fact is concern no doubt the accused are very influential persons, one being former prime minister of Pakistan and some other very important personalities but it must be accepted that every body is equal before law. No undue protection or relaxation can be afforded.
The democratic process requires that the persons ruling this country must not indulge in making money by corrupt practice as is alleged in the FIR. The State money is a sacred trust to be looked after by clean hands. We are not giving final findings that the accused have committed the aforesaid offences but the nature of the evidence so far collected by the investigating agency compels us not to stop the process of law to its course. Some body may succeed in obstructing its course but sooner or later its have hands do go to the neck of the sinner because of the inherent supremacy of law.
30. The contentions raised by the learned DAG has some substance to say that the provision of Protection of Economic Reforms Act 1992, do not bar the registration of the case.
31. At this stage, we do not like to dilate upon the judgment given by our brother Ch. Khurshid Ahmad, J: as it deals only with one FIR No. 12/94 but at the same time we feel inclined to say that the petitioners were required to agitate for all the relief which were available to them when the writ petition was filed at Principal Seat at Lahore.
32. The investigation of this case is in progress, it is a matter of judicial principles that Hon'ble High Court cannot sit as investigator and stop the investigation of the cases, especially under' the circumstances when the prosecution is already in possession of prima facie strong evidence case against the accused/petitioners. Hampering the process of investigation has always been taken against the ends of justice.
33. For the aforesaid discussion, there is no substance in the writ petition to quash the FIRs and to grant bail, specially bail before arrest. Accordingly the writ petitions and the bail applications are dismissed. No order as to costs. Here it may be pointed out that on the last date of hearing the accused/petitioners were absent from the Court inspite of the fact that they were directed to appear in person before the Court.
34. The investigating agency is directed to complete the investigation as soon as possible. The petitioners may apply for post arrest bail after the investigation is completed. The observations made herein by this Court shall not be taken into account for trial and final adjudication of these cases. However, so far as the women/minor accused are concerned, we have been persuaded to hold that there is no material against them. They shall, therefore, be not proceeded against. To their extent, the impugned FIRs shall be deemed to have been quashed.