' Malik Nazir Ahmad Vice President Audit, Lahore acting for the National - Development Finance Corporation has filed the instant appeal against' the judgement of the Chairman Banking Tribunal No,1, Lahore dated 2-11-1994, whereby, respondents Nos. 1 to 7 were acquitted, on the application moved by the respondents/accused under section 265-K, Cr. P.0 .
2. Petition for special leave to appeal bearing No,2/1995 was filed in this Court which was heard on 4th of June, 1996 and leave to appeal was granted, whereafter the application was converted into regular appeal bearing No,484/1996 which is now under consideration. Respondent Sheikh Fazal Hussain died in the interregnum whereas, the other respondents are represented through their learned counsels.
3. Facts essential to be dilated upon for the effective adjudication of the appeal are that the appellant/complainant instituted a complaint under section 7 of the Banking Tribunal Ordinance, 1984 alleging that the respondents pilfered the stock of the edible oil on the security of which financing was provided to them. The complaint came up for preliminary hearing before the tribunal and having found that the mandatory provisions of Proviso appended to Section 5(1) (b) of the. Banking Tribunal Ordinance, 1984 had not been complied, as conceded by the learned counsel for the complainant, it was ordered by the Tribunal that the complaint cannot proceed and the complainant was allowed to withdraw the same, however, granted permission to the complainant that as and when the mandatory provisions of law are complied with a fresh complaint may be brought. The complainant after obtaining necessary authorisation from the National Development Finance Corporation filed another complaint dated 15-2-1993 and without recording the preliminary evidence, process for appearance of the respondents was issued in response of which they appeared and furnished their bail bonds. An application was moved under Section 265-K, Cr.P.C. On a number of grounds that no case is made out from the perusal of the complaint, therefore, the accused/respondents be acquitted. After hearing both the parties order of acquittal was passed by the Chairman of the Banking Tribunal No,l. Lahore dated 2-11-1994 which has been impugned in this appeal against acquittal.
4. Amongst other objections which were decided in favour of the complainant, the ground which weighed with the trial Judge in acquitting the respondents was two tolds, which is reproduced as under: --- "(1) That earlier to the institution of this complaint; the complainant had filed a similar complaint which was withdrawn with a permission to bring a fresh complaint due to some legal defects, but there was no provision allowing such a course in the Code of the Criminal Procedure.
(2) That after bringing a fresh complaint pursuant to the withdrawal of the previous complaint, the complainant has filed an amended complaint to be taken cognizance of, again for which there is no provision in the Code of Criminal Procedure."
5. To nutshell the only ground, if we amalgamate the two submissions reproduced above, that weighed with the trial Judge, in acquitting the respondents was that having withdrawn the first complaint with the permission of the Court, no fresh complaint after complying with the mandate of law, could be brought as it was not permissible under the Code of Criminal Procedure.
6. Learned counsel for the complainant lambasted the judgement of the Tribunal by stating that a wrong view of the law has been taken resulting in the acquittal of the respondents unreasonably which has caused a grave miscarriage of justice. Elaborating his arguments it was emphatically submitted that at the time of withdrawal of the first complaint, the accused had not yet been summoned and no evidence in the form of preliminary enquiry was recorded. It was only because of a formal defect, that with the permission of the Tribunal, the complaint was Withdrawn to bring a fresh complaint after complying with the mandate of law which was done so and in pursuance whereof, the respondents were summoned as accused who appeared and submitted their bail bonds. It was next 'submitted that under Section 203, Cr.P.C. Undoubtedly the Court was invested with the powers to dismiss the complaint but after considering the statement on oath of the complainant and the result of the investigation or inquiry (if any) made under section 202 Cr.P.C. If in the judgement of the Court no sufficient ground for proceeding appears to have been made out.
It was stated that acquittal did not conform with the quoted prevision of law and lastly it was submitted that there was no bar to bring a fresh complaint particularly, when the provisions of Section 403, Cr.P.C. Were not violated. Or the bringing of a fresh complaint was in no manner barred by the provisions of Section 369, Cr.P.C. In support of his arguments learned counsel relied upon the case of Atta Muhammad and others vs. Lqrar Ahmed and another (1991 PCr.LJ 274).
Provisions of Article 13 of the Constitution of the Islamic Republic of Pakistan 1973 were also invoked by stating that acquittal in no manner offended the rule of double Jeopardy and mere technicalities of law should not stand in the way of the Court to do substantial justice in case where a prestigious Organization has been deprived of a colossal amount of money by the trickery practiced by the respondents. Case of Sayed Alamdar Hussain Shah v. Abdul Baseer Qureshi and two others (PLD 1978 SC 121 ) was relied upon to submit that the prosecution having not come to an end while prosecuting first complaint the second complaint in no way was derogatory to the principles of autrefois convict and acquit.
7 . Learnd counsel for the respondents on the other hand supporting the judgments of the Tribunal which resulted in acquittal of the respondents. Stated that the Code of the Criminal Procedure did not envisage the bringing of a fresh complaint after withdrawal of the earlier complaint and if the law does not permit a particular thing to be done it cannot be stretched by analogy or infrences in favor of a party to allow him to take a step for which there exists no provision of law. In support of his argument reliance was placed on the case of Mazhar Hussain and others v. The State and others reported in 1993 PCr. LJ 576 and Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul- Haque Chohan and 4 others reported in 1993 Pakistan Cr.L.J.
1056. Another argument raised by the learned counsel for the respordents was based on an agreement titled as " agreement of settlement" produced before this Court, for the first time, in which the parties had agreed to withdraw their respective claims, the instant appeal was mentioned in para 3-F of the said agreement wherein it was stated as under:--- "It is also agreed between the parties that criminal appeal/revision filed by N.D.F.C. Against the judgement debtor shall be withdrawn by N.D.F.C. "
8. Learned counsel vociferously submitted that the agreement was signed by both the parties. i.e, the complainant and the respondents and further the respondents have abided by the stipulations of the said agreement but the complainant by pursuing the appeal has reneged on his word of honour given in the referred to agreement which under the law bars him for further proceedings as per terms and conditions of the agreement. In this connection learned counsel relied upon the case of Muhammad Sharif and 13 others v. Inayat Ullah and 24 others reported in 1996 SCMR 145.
9. I have earnestly attended to the arguments of the respective counsels and have also perused the limited record.
10. The complaint by a person aggrieved can be filed under Section 200 of the Code of Criminal Procedure contained in Chapter 16 whereupon the Magistrate is required, to at once examine the complainant upon oath and reduce in writing substance of his examination which has to be signed by the complainant as well as the Magistrate. Under Section 202, Cr.P.C. After taking cognizance, issuance of process for compelling the attendance of the person complained against, may be postponed, for reasons to be recorded, till such time as the Court itself inquiries into the matter or direct an inquiry of investigation to be made by a Police Officer or by such other means as it thinks fit for the purposes of ascertaining the truth or false-hood of the complaint. Subsection 4 of section 202 further empowers the Court inquiring into a case to take evidence of witnesses on oath if it thinks fit.
11. There is no cavil with the proposition that it is not obligatory when a complaint is made before the Sessions Court to record preliminary statement of the complainant on oath or record the evidence of any witness to be produced by the complainant before issuance of the process against the accused and the Tribunal whose judgment is under consideration undoubtedly, has the powers of a Sessions Court.
12. Section 203 of the Code of Criminal Procedure which has been reproduced above invests the Court to dismiss the complaint if in its judgment no sufficient ground for proceedings against the accused is made out but before doing that it shall record its reasons for so doing.
13. Admittedly in the instant case when the first complaint was made before the Tribunal no process was issued to the respondents/accused because a defect going to the root of the complaint was pointed out and willingly the complainant expressed his desire to take back the complaint with the permission of the Court to bring a fresh complaint a fresh complaint after removal of the defects by complying with the mandate of law. The permission was granted and a fresh complaint was filed which after perusal prompted the learned tribunal to issue process to the respondents, but on the application of the accused/respondents under Section 265-K, Cr.P.C. For grounds alluded in the preceding paragraph, the said application met with success and the accused were acquitted. Since no preliminary evidence was recorded, it cannot be argued that order of acquittal proceeded because the evidence was considered to be flawed or it did not connect the accused with the commission of the offence. In other words no decision was arrived at on merits. To the contrary acquittal proceeded merely on technical objections. By no stretch of imagination can it be argued that the complainant was given an opportunity to have his complaint inquired into. Case of Atta Muhammad v. Iqrar Ahmad supra although by a single bench has a persuasive effect, wherein it was held that order of dismissal of a complaint under section 203 Cr.P.C. Was no bar to the entertainment of second complaint on -the same facts though exceptional circumstances would be required for such entertainment. Before embarking upon to elucidate as to what are the exceptional circumstances it would be expedient and proper to determine whether in the present scenario provisions of section 403, Cr.P.C. Are attracted, because one of the arguments emanating from the side of the respondents was that the principle of autrefois convict and autrefois acquit is applicable.
14: The principle of autrefois convict and autrefois acquit is based on the axiom that no person shall be vexed twice for the same offence, however, the important principle underlying invocation of this rule is that a person should be tried by a Court of competent jurisdiction for an offence irrespective whether he is convicted or acquitted he cannot be tired again for the same offence. Explanation appended to section 403, Cr.P.C. Clears all doubts when it expressly lays down that dismissal of a complaint, stopping the proceedings under section 249 or the discharge of the accused is not an acquittal for the purpose of this section. Similar provision exist in Article 13 of the Constitution based on the principal of double jeopardy and it states that no person shall be prosecuted or punished for the same offence more than once. The dictum of the Supreme Court in the case of Sayed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others supra removes all doubts that mere prosecution in one Court without reaching a conclusion continuing the cause for the second time in another Court was in no manner derogatory to the principle embodied and enshrined in Article 13 of the Constitution of the Islamic Republic of Pakistan.
15. Viewing it from every angle I am convinced that withdrawal of the first complaint and bringing of the second complaint do not violate either provisions of section 403, Cr.P.C. Or the rule of double jeopardy arising out of Article 13 of Constitution of Islamic Republic of Pakistan, 1973. On the other hand, case-law relied upon by the learned counsel for the respondents in Mazhar Hussain and others v. The State and others 1993 PCr.LJ 576 is on totally a different plinth. In this case the trial Court had summoned the accused named in the complaint without taking into consideration the dismissal of the earlier complaint against them in respect of the same offence which had resulted in their acquittal. The precedent case is totally different to the one under discussion. In the first complaint which was withdrawn the accused had not been summoned, therefore, the principles of section 403(1), Cr.P.C. Have no application. Similarly, the case of Malik Anjum Farooq Paracha and 7 others v. Manzoor-ul-Hassan Chohan and 4 others 1993 Pakistan Criminal Law Journal 1056 was regarding the filing of the second F.I.R. Which was the main stay of the case and it was found that in the earlier F.I.R. The accused had been exonerated by the Court of competent jurisdiction by passing a judicial order, therefore, registration of a case on the basis of second F.I.R. And consequent investigation on the basis thereof amounted to rule of double jeopardy. This case too is on entirely different footings and has no nexus with the case under consideration and as such the ruling cited is not relevant.
16. It was also urged, although, without vehemence that the conviction under section 369, Cr.P.C.
Stands violated by the filing of the subsequent complaint. The sooner this objection is adverted to and dealt with the better it is in the interest of law. Section 369, Cr.P.C. Debars the Court to alter its judgment. Judgment means a firm determination resulting in the final adjudication after application of judicial mind and section 369 prohibits a Court that once a judgment is signed it shall not be altered or reviewed except to correct a clerical error. No judgment at all was passed in the instant case. An order permitting the complainant to withdraw the complaint to file a fresh complaint was made. Filing of the fresh complaint therefore, was in no manner violative of the provisions of section 369, Cr.P.C.
17. Reverting to section 203, Cr.P.C. After deep consideration all the facts of the case and the arguments advanced I am convinced in my mind that although there is no enabling provisions in the Code of Criminal Procedure where a complaint is withdrawn for technical reasons, a fresh complaint can be brought, however, in this case permission of the Court was sought not only to withdraw the complaint but also to bring a fresh complaint and secondly, more importantly there is no prohibition in the Code of Criminal Procedure, in the interest of justice, for bringing a fresh complaint on the same allegations when a previous complaint was allowed to be withdrawn. It is only by invoking the rule of necessary caution for the proper exercise of discretion when exceptional circumstances must exist for the entertainment of the second complaint upon the same allegations. Manifest error, manifest miscarriage of justice and new facts which the complainant had no knowledge of or the counsel with reasonable diligence could not have brought forward in the previous proceedings may amount to exceptional circumstances falling within one or more of the three categories. Whenever a Court is satisfied that the previous order of dismissal was due to manifest error or has resulted in the miscarriage of justice, he can entertain the second complaint on the same allegations. Matter would have been different where a complaint is tiled and the Court holds an inquiry under section 202, Cr.P.C. By taking evidence offered by the complainant into consideration and then comes to the conclusion that there is no ground to proceed or that the evidence is not worthy of the credit and he is not satisfied with the correctness, in such circumstances, the Court is entitled to refuse to issue process and dismiss the complaint under section 203, Cr.P.C. The order passed cannot be said to fall in the category enumerated, because in such a case bringing of a fresh complaint, undoubtedly would amount to gross abuse of process of the Court and furthering of the interest of justice would be thwarted but no such circumstance or proceedings exists in the case under consideration. It was a manifest error on the part of the complainant in not complying with the mandatory provisions of law that he begged the Court to allow him to withdraw the complainant, complied with the mandate and thereafter tiled a fresh complaint. After seeking permission and complying with the directions of law a fresh complaint was filed. No exercise of mind by the Court in a judicial manner after examining of the evidence in the first ,omplaint was undertaken and neither were the accused summoned, therefore, initiation of fresh proceedings through the second complaint was not prohibited by any provision of law and could very well be maintained. The respondents/accused could not make a grievance once having been summoned that a fresh/second complaint for technical reasons was not maintainable. The order of acquittal passed by the Tribunal, therefore, was palpably unjust occasioning a manifest miscarriage of justice.
18. Coming to the last objection of the learned counsel for the respondents that the complainant had in black and white entered into an agreement of settlement, that he would not pursue the instant appeal rather would withdraw it, precipitated the respondents to withdraw allied proceedings against the complainant and his unwillingness to fulfil his part of the agreement has left them stranded, high and dry, therefore, order of acquittal should not be interfered with. The argument is highly fallacious and devoid of force. The agreement is violative on the face of it by the provision of section 28 of the Contract Act IX of 1872 which is reproduced as under:--- "Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by usual legal proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights, is void to that extent."
' The argument on the face of it, is without substance and does not attract serious attention, to dwell upon it, at length. In any case, there is ample case law to counter it effectively. The case of E.A. Evans v. Muhammad Ashraf reported in PLD 1964 SC 536, is a classic example to be quoted. In this case a tenant agreed to opt out of protection given to him by section 30 of the displaced persons (Compensation and Rehabilitation) Act, XXVIII 1958 but subsequently reneged. It was held by the apex Court that the agreement was contrary to the public policy and could not bind the tenant if he had even signed the agreement opting out of the protection a hundred times. A similar view has been expressed in the case of Ghazala Yamin v. Muhammad Yamin reported in 1987 M LD 2940 whereby it was held that an agreement executed by the mother where she comes up for the custody of her minor child of tender age cannot disentitle the mother to claim the custody of the child through a petition under section 25 of the Guardian and Wards Act VIII of 1890. The rule enunciated in the aforesaid ruling was affirmed later on in the case of Mst. Bushra Mughal v.
Additional District Judge, Kharian and others reported in 1999 M LD 2960.
20. The upshot of the discussion, therefore, is that the order impugned in this appeal against the acquittal, for reasons detailed in the judgment cannot be sustained. Resultantly, order ' of acquittal, dated 2-11-1994 is set aside. The case is 'remanded to the Chairman Banking Tribunal No,
1. Lahore or the Court which has succeeded it to commence trial at the stage it was left and to conclude it expeditiously within reasonable period not exceeding more than six months. The counsel for both the parties are in attendance. They shall inform their parties to appear before the Tribunal on 18th of July, 2001. Deputy Registrar (Judicial) of this Court shall ensure that the present order is transmitted to the concerned tribunal before the date fixed.