1. NAZIM HUSSAIN SIDDIQUI, J.---This Judgment will dispose of Constitutional Petition Nos. D-1958 and 2152 of 1997. In these Petitions common questions of facts and law are involved. Petition No,D- 1958 of 1997 has been filed by a registered Firm i,e, Golden Eagle Enterprises, while Mohiuddin is the petitioner in Petition No,D-2152 of 1997, who is a partner of said Firm.
2. The case of the respondents Nos.2 and 3 (C.P. No,D-1958 of 1997) in brief, is that on 16-4-1995 said Firm having its partner, Muhammad Sharif and Mohiuddin had opened an account with the respondent No,3 Allied Bank Limited (ABL) University Road Branch, Karachi, and applied for Lease Finance facility of Rs,115.000(M) for purchase of 25 Mercedez Benz Buses. The Firm had offered to invest an amount of Rs, 35.000(M) as equity for establishing three modern workshops in the country. It is alleged that the Manager of the Bank not being satisfied with the financial position of the Firm did not deem it necessary to take any further action in that regard. Further, it is alleged that said Firm with collaboration and connivance of Mr. S. Shaukat Ali Kazmi, the then President, ABL, succeeded in getting a Lease Finance facility of Rs,50.000(M) in it favour on personal guarantee of Mr. Iqbal Memon and necessary approval for it was accorded by the Executive Credit Committee of the Bank. It is also the case of the respondents that Mr. Sardar Ali Advisor of Mr. Asif Ali Zardari, the spouse of the then Prime Minister of Pakistan, pressurised the branch manager to disburse the loan without completing necessary formalities. Thereafter, S. Shaukat Ali Kazmi directed the Zonal Chief to disburse the amount as a Running Finance without completion of necessary formalities in that regard. On 28-1-1996, the loan was disbursed and the petitioners offered an industrial plot, as security measuring 4574.22 sq. yd, showing its value at Rs,22.871(M) at the rate of Rs,5000 per sq. yds. Further, it is alleged that M/s. Razzaque Umerani & Co. in their valuation report showed its value at Rs,11.435(M) only at the rate for Rs,2,500 per sq. yard.
3. The F.I.R. of this case being Crime No,43 of 1997 was registered by Federal Investigation Agency on 1-8-1997 showing the dates of occurrence as 11-1-1996 and 28-1-1996.
4. Interim charge sheet was submitted before the trial Court on 16-8-1997 in which petitioner Mohiuddin was shown in custody, while S. Shaukat Ali Kazmi, Ex-President of ABL, Iqbal Memon, Chief Executive Tameer-eMashriq, Karachi, Sardar Ali, owner of M/s. Peshawar, Karachi, Muhammad Sharif partner of M/s. Golden Eagle Enterprises Karachi, were shown as absconders.
5. The charge-sheet was submitted under sections 406, 420. 468, 471, 477-A & 34 P.P.C. Only four persons namely complainant Muhammad Zaheeruddin, Mrs. Nuzhat K. Sherwani, Manager ABL, Mr. Mir Ali Hassan, the then Zonal Chief, Gulshan-e-lqbal Zone, Karachi and Abdul Ghaffar Khan, the then Circle Executive ABL, Nazimabad Karachi, were cited as witnesses.
6. The Bank, as per its letter dated 28th November, 1995 sanctioned lease finance of Rs,50(M). The letter mentioned that, in accordance with the letter of the petitioners dated 6-11-1995, the competent authority of the Bank had revised the amount and the terms and conditions of the lease finance facility communicated to the petitioners under Bank's letter dated 26-10-1995. Said letter also mentioned that Hino vehicles were to be swapped with 'Nissan' and the tenor was three years. Further, it mentioned that ownership of the vehicles was with bank and these vehicles were to be registered as of in ABL.
7. It appears that a meeting was held on 18-8-1997 between the petitioners and the bank authorities whereby, it was agreed that the petitioners would pay Rs,15.500(M) reducing the total liability to Rs,30(M) before 31-8-1997. It was also agreed that the petitioners would pay Rs,2.000(M) against which bank would issue no Objection Certificate for one mortgaged vehicle. Further, it was agreed that the petitioners would continue paying Rs,2.000(M) regularly against which each mortgaged vehicle shall be released. In this way entire liability of Rs,30.000(M) would be adjusted and the bank shall issue NOC for all the 15 vehicles maximum by 28th February, 1998.
8. The petitioners have claimed that, as on 30-8-1997, they had paid the bank an amount of Rs,2,56,91,280. Under the circumstances, the petitioners, in Petition No,D-1958 of 1997, prayed that the criminal proceedings referred to earlier be quashed. In Petition No,D-2152 of 1997 besides above prayer, the order dated 3rd November, 1997 passed by learned Judge Special Court (Offences in Banks) Sindh at Karachi, on an application moved under section 249-A Cr.P.C. has also been challenged.
9. It is contended on behalf of the petitioners that real purpose for registration of this case was to implicate Asif Ali Zardari and S. Shaukat Ali Kazmi and in order to achieve said purpose the petitioners' Firm was also implicated. Learned counsel submits that the bank has not suffered any monetary loss and even the title of 5 buses still vests in it, as such, the question of cheating simply does not arise. He also contended that the petitioners had not committed any substantial default in repayment of loan and that the facility was for three years and at the time the case was registered said period had not expired, therefore, there was no justification for registration of the cases against the petitioners.
10. As against above, Mr. Arif Hussain Khilji, learned counsel for the Bank argued that the petitioners got finance disbursed through political influence and without providing adequate securities, as such, they are not entitled to the reliefs claimed in these petitions. He also argued that security document particularly relating to said plot were improper and insufficient as security.
11. Mr. Mubarrak Hussain Siddiqui, learned DAG has contended that Mr. Asif Ali Zardari, the spouse of the former Prime Minister of Pakistan, has not been nominated as accused in this case and that these are the petitioners, who have tried to politicise the issue by making their, submissions in that regard. He argued that Mr. Iqbal Memon and Mr. Sardar Ali were the real partners of the petitioner's Firm and they had done mischief for which the case was registered. He also submitted that the suit for recovery of outstanding amount against the petitioners has been filed in respect of said transaction before this Court. In the last, he submitted that the liability of the petitioners, now, is of Rs,300,04,000 including (Mark-Up).
12. Both these petitions are at Katcha Peshi stage. By consent, they are being admitted and are being disposed of on merits finally.
13. A perusal of the F.I.R. gives the impression that either Asif Ali Zardari or his the then advisor Mr. Sardar Ali had pressurised the Bank Authorities for showing favour to the petitioners' Firm. It is significant to note that admittedly no material is available on record to show the involvement of Mr. Asif Ali Zardari in this case. It being so, atleast at the time of submitting interim charge-sheet on 16- 8-1997 above position should have been clarified by the prosecution. Also no evidence was referred, either by learned DAG or by Mr. Arif Hussain Khilji to show that Mr. Sardar Alt, the then Advisor to Asif Ali Zardari, had pressurised the Branch Manager to disburse the loan to the Petitioners Firm.
14. Learned counsel for the Bank argued that at the initial stages of above transaction the persons named earlier had pressurised the bank authorities for sanctioning said loan in favour of the petitioners. According to the F.I.R., the first relevant date is 16-4-1995 when the petitioners had opened their account with the bank. It appears that thereafter the correspondence was exchanged between the petitioners and the bank and on 28th November, 1995 the bank revised the amount and terms and conditions of the Lease Finance facility. This had changed the earlier covenants and period of three years was provided in terms of letter dated 28th November, 1995. Said period would expire on 27th November, 1998. If the bank authorities were pressurised at the earlier stage there was no evidence, worth mentioning, to show that so was done again on 28th November, 1995. This, in fact, provided a fresh cause of action to both the parties and in case of violation of the terms either party could approach the Civil Court for the legal remedy, available to it.
15. In an agreement, bank is like any other party. It cannot escape its liability under the often repeated ground of "political influence", nor there is any impediment in its way to recover the amount of loss suffered by it from its own employees, who deliberately committed illegal acts and transgressed the limits of their permissible power.
16. It is also an admitted position that on 18-8-1997 a settlement was arrived at between the parties by virtue of which the petitioners were to reduce their liabilities to Rs,30(M) before 31-8-1997. On 1-8- 1997, the F.I.R. of this case was registered against the petitioners. It means that they were prevented from complying with the terms of said settlement. It is pointed out that upto 30-8-1997 they had already paid an amount of Rs,2,56,91,280.
17. Mr. Mubarrak Hussain Siddiqui, learned DAG argued that by getting the lease finance converted into a running finance, the petitioners had caused loss to the bank. We do not find any substance in this plea. The outstanding amount was to be paid in three years on the basis of prescribed monthly instalments and before expiry of said period the criminal proceedings were initiated. It appears that the amount lent to the petitioners Firm was secured to the satisfaction of bank authorities and it was released after approval of the Executive Credit Committee of the bank. There is nothing on record to suggest that any action was taken against the errant members of said committee nor their names were disclosed.
18. As regards, the valuation of said plot, it is noted that the discrepancy in the valuation figures in respect of the market price, by itself cannot be a basis for a charge of cheating and fabrication for various reasons, including the one that the valuation was made by an approved Valuator of the bank, as is mentioned in the sanction letter dated 28-11-1995.
19. Close scrutiny of the admitted facts reveals that primarily it is a case of civil nature. At least on 2/3 occasions, the parties with consent changed the terms and conditions of the agreement. Much before final due date for payment of the loan the criminal case was registered, which in our view was not justified. It is not a case of criminal breach of trust, as the title of the property (buses) admittedly remained with the bank and it could any tinge seize those buses and recover its amount, if any.
20. Section 420 P.P.C. is also not attracted. Neither, it is case of cheating nor of dishonestly inducing for delivery of property. The transaction was transparent and aforesaid settlement was arrived at after taking into consideration all the aspects of the case. Also, it is not a case of forgery. Mere discrepancy about valuation of said plot does not by itself make it a forged document especially when the valuation was done by an approved Valuator of the bank. We are of the view that sections 468, 471, 477-A P.P.C. are also not attracted under the circumstances of this case. After the settlement referred to earlier the terms and conditions were changed and the petitioners were responsible for the new terms. The bank could ask for new securities but that was not done. It meant that the bank was satisfied with the securities furnished earlier.
21. In view of above discussion, we allow the above petitions and quash the criminal proceedings pending against the petitioners before the Special Court (Offences in Banks) Sindh at Karachi, relating to F.I.R. mentioned earlier. Petitioner Mohiuddin be released forthwith if not required in any other case.