' MIR MUHAMMAD NAWAZ MARRI, J.--- All these 26 applications are arising out of the same judgment of learned Special Judge under Banking Ordinance whereby the applications filed by the applicant under section 265-K, Cr.P.C. For his acquittal were rejected.
2. The F.IA. Authorities registered 26 cases against the petitioner and other Bank Officers and borrowers alleging therein that they had sanctioned huge amount on the basis of forged and fictitious documents and without proper scrutiny heavy advances were allowed to the borrowers under section 420/468/471/109/409, P.P.C. Read with section 5(2), Act II of 1947. The list of the cases are as under:-- S.No.F.I.R. No,Amount involvedFictitious amount shownActual Amount of mortgaged property 3/88 Rs.8,00,000 Rs.14,02,191 Rs.46,280 4/88 Rs.6,00,000 Rs.11,12,490 Rs.30,000 5/88 Rs.7,00,000 Rs.12,22,000 Rs.39,200 6/88 Rs.4,00,000 Rs.7,05,630 Rs.19,050 7/88 Rs.7,30,000 Rs.12,62,000 Rs.30,000 8/88 Rs.7,00,000 Rs.12,41,800 Rs.20,000 9/88 Rs.6,00,000 Rs.11,50,820 Rs.32,670, 10/88Rs.8,00,000 Rs.14,03,000 Rs.43,560 11/88 Rs.8,00,000 Rs.14,01,000 Rs.40,830 12/88 Rs.7,30,000 Rs.12,90,100 Rs.29,945 13/88Rs.5,00,000 Rs.8,90,410 Rs.16,332 14/88Rs.6,00,000 Rs.13,32,870 Rs.4,24,574 15/88Rs.7,00,000 Rs.14,80,000 Not declared 16/88Rs.8,00,000 Rs.26,39,200 Rs.2,40,920 17/88 Rs.6,00,000 Rs.10,20,130 Rs.29,940 18/88Rs.6,00,000 Rs.12,00,295 Rs.5,05,977 19/88Rs.5,00,000 Rs.10,00,198 Rs.17,148 20/88Rs.7,50,000 Rs.13,45,000 Rs.30,000 21/88 Rs:7,50,000 Rs.13,00,500 Rs.21,780 22/88Rs.7,00,000 Rs.14,02,771 Rs.36,000 23/88Rs.6,00,000 Rs.1,11,720 Rs.20,520 24/88Rs.7,00,000 Rs.15,35;255 Rs.5,30,160 25/88Rs.8,01;000 Rs.12,62,000 Not declared 26/88Rs.6,00,000 Rs.14,07,340 Rs.2,03,076 27/88Rs.7,50,000 Rs.12,23,350 Rs.45,736 28/88Rs.7,50,000 Rs.12,15,235 Rs.50,088 ' It was alleged in the F.I.R. That the petitioner was Grade-I Officer in the Circle Office United Bank of Pakistan, Quetta who scrutinized loan proposals and got the loan sanctioned by Waqar Ilyas, Circle Executive without adopting the proper procedure and with ulterior motive.
4. After usual investigation challan was submitted in the Court of Special Judge, Banking. Petitioner filed an application in the said Court for his acquittal under section 265-K, Cr.P.C. Which was rejected vide order, dated 28-8-1994, the present petitions have been filed against the said order.
5. Mr. Muhammad Ashraf Khan Tanoli, Advocate for the petitioner strenuously argued that no specific role has been assigned against the petitioner. Mere nomination in the F.I.R. Does not constitute any offence against the petitioner. The petitioner was not entrusted with duty of scrutinizing the proposal papers nor it was duty of petitioner. The grant of loan is regulated by "Manual of advances" circulated by the Bank according to which it was responsibility of the Branch Manager to scrutinize all the documents regarding loan proposals. He further argued that the loan application and financial reports are scrutinized by the Branch. Managers and sent them with their recommendations to credit committee comprising of a Circle Executive, Assistant Vice-President and Branch Manager. According to him petitioner was involved in the cases merely on the ground that he was one of the cosignatory of the letter whereby the sanction accorded by the Committee was communicated to the Branch Manager. He next contended that sufficient incriminated material is lacking on record to connect the petitioner with the commission of offence, as such the petitioner was placed in Column No,2 of the challan by the prosecution.
6. His next contention was that four witnesses have been examined and none of them implicated the petitioner in the commission of offence or assigned any specific role against the petitioner.
Lastly he contended that in absence of section 34 in the charge no conviction can be recorded on the ground of vacarious liability.
7. On the other hand Raja Rab Nawaz, Deputy Attorney-General opposed the petitions on the ground that sufficient incriminating material is available on record to connect the petitioner with the commission of offence. The Government ex-chequer has been defrauded of Millions of Rupees.
Charge has been framed which shows that prima facie case against the petitioner is made out.
The evidence of four witnesses have been recorded. Some other witnesses are yet to be examined.
These petitions have been filed prematurely and at this stage accepting petitions would amount to throatling the prosecution.
8. We have considered the arguments of the learned counsel for the parties and perused the record made so available. It is settled principle that ordinarily every case should be allowed to proceed according to law. The powers under section 561-A, Cr.P.C. Are always exercised only to prevent the abuse of process of the Court or when the proceedings do not contain definite accusation. If the facts stated in F.I.R. And statements recorded under section 161, Cr.P.C., presumed to be true then it cannot be said that the charge is groundless or there is no probability Of the petitioner being convicted of any ' offence. The question whether any offence has been made out can be determined by the trial Court after recording some material evidence. Quashment of proceedings at an early stage would amount to stifling the criminal proceedings. In the instant case the petitioner is nominated in the F.I.R. The statements of the witnesses recorded under section 161, Cr.P.C. Specifically implicate the petitioner in the case. It has been stated by Ehsan-ul-Haq, Assistant Vice-President United Bank Limited that the petitioner Khalid Hussain Banwa was responsible to scrutinize the documents forwarded by the Branch Manager for loan to the parties. He further stated that Khalid Hussain Banwa was responsible to look after the performance of the Branch Manager in respect of complaint of Special instructions. The counsel for the petitioner gave much emphasize that the sanction advise was nothing but only a letter to the Manager informing him that such loan has been sanctioned. In this regard Ehsan-ul-Haq stated that sanction advise means that a loan has been sanctioned with certain restrictions, therefore, it cannot be said that it is only a letter to the Manager communicating him about the sanction of the loan. If this contention is believed to be true then any other Officer could communicate this information to the Branch Manager instead of Circle Executive.
9. Mr. Tariq Muneer in his statement deposed that disbursement of sanction amount is to be made by the Branch Manager after fullfilment of terms and condition stipulated in the sanction advise.
The Manager in not competent to raise any objection on limit sanctioned by the higher authorities as "sanction advise" for disbursement of the sanction amount. Abdul Qadir also in his statement deposed that as far procedure laid down in Circular P.P.I. No,528 issued on 15th October, 1980, all the proposals should have been routed through Zonal Office but in the instant case the Zonal Office was bypassed and loan was sanctioned by the Circle Office causing loss to the Government exchequer. All the abovementioned witnesses are yet to be examined. On the basis of the above tentative assessm ent of the material available on record it cannot be said that prima facie no case is made out. At this stage it is difficult to observe that on the basis of material available there is no chance of his being convicted.'
10. As it has been observed earlier that while deciding an application under section 561-A, Cr.P.C.
Minute scrutiny of evidence is not required. The enquiry should be confined only to the extent where a prima facie case is made out against the accused persons on the basis of fact disclosed in the F.I.R., challan, statements of prosecution witnesses or the charge is groundless. In the present case petitioner is nominated in F.I.R., statements of witnesses recorded under section 161, Cr.P.C.
Implicates the petitioner with the commission of offence. In our this view we are supported by the judgment of Sindh High Court Asif Ali Zardari v. The State reported in 1992 PCr.LJ 58, wherein following observation has been made:- "It is not function of the High Court in proceedings under section 561-A, to judge the innocence or guilt of an accused by minute scrutiny of evidence recorded against him or by judging the credibility of prosecution witnesses. The enquiry is only to be confined to the question, whether a prima facie case exists against the accused on the facts disclosed in the F.I.R. Or the challan, or the deposition of the prosecution witnesses, if any recorded by the trial Court or the charge is groundless. The second argument of the learned Advocate-General, therefore, must also fail."
11. Mr. Ashraf Khan , Tanoli learned counsel for the petitioner cited judgment of Sindh High Court in case of Asif Ali Zardari v. The State which was upheld by the Honourable Supreme Court of Pakistan mentioned hereinabove whereby the proceedings were quashed under section 561-A, Cr.P.C. And stressed that the facts of the present case are identical to that of cited above. We have not been able to pursuade ourselves to agree with him. The facts of the case cited above are distinguishable than the case in hand. In this regard the observation made are as under:-- "It may be pointed out that applicant Asif Ali 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 Hyder 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 offence allegedly committed by co-accused Safdar Abbas Zaidi or Hyder Ladho Jafar, howsoever 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 act that he acted under pressure of applicant Asif Ali Zardari cannot establish an offence of abetment against the latter."
12. Now adverting to another point raised by Mr. Ashraf Khan Tanoli learned counsel for the 'petitioner that petitioner is not charged under section 34, P.P.C. It may be seen that section 34, P.P.C. Does not create any specific offence. It is principle of constructive liability. A person can be convicted of an offence if the facts of the case justify and if the accused had understood the evidence lead against him, of such a facts irrespective of the fact whether the section was expressly mentioned in the charge or not? AIR 1958 SC 672. In our this view we are further fortified by the D.B. Judgment of this Court in case Haji Hamal v. The State reported in 1986 PCr.LJ 1121. The relevant para is reproduced as under:-- "The intention of the trial Judge appeared to charge the appellants for committing the offence in furtherance of their common intention and the same charge was disclosed to them. It is a mere irregularity by the learned trial Judge that he did not refer to the provisions of section 34 in his judgment in convicting and sentencing the appellants. The mode in which the complainant party was attacked would clearly show that the accused party had the common intention to commit the offence. The accused party came at the spot and at once started attacking the complainant party.
Their common intention was thus established beyond any doubt. The non-mentioning of this fact by the learned trial Judge in his impugned judgment has caused no prejudice to the appellants on this count. We do not accept this contention of the learned counsel for the appellants."
In view of the above discussion without making any comments on merits the petitions are dismissed.