' Brief facts out of which the present writ petition arises are that on request of respondent No,2, the petitioner furnished to Water and Sanitation Agency (WASA) of the Lahore Development Authority two Bank Guarantees, dated 5-4-1980 for Rs,44,58,140 each against pledge, inter alia, of respondent No,2's plaint and machinery valued Rs,57,48,000. The aforesaid plant and machinery were handed over back to respondent No,2 on execution of a Trust receipt, dated 5-4-1980. The petitioner requested respondent No,2 to hand over the aforesaid plant and machinery to it by virtue of clause-I(C) and 2 of the Trust Receipt, dated 5-4-1980. Respondents failed to give reply to the petitioner. Petitioner learnt that respondents Nos.2 and 3 had sold or disposed of the aforesaid plant and machinery. Therefore, committed breach of terms of the Trust Receipt, dated 5-4-1980 which constituted an offence/punishable under section 9 of the Banking Companies (Recovery of Loans) Ordinance, 1979. Petitioner being aggrieved filed a complaint in the Court of Special Judge Banking Lahore under section 9 of the aforesaid Ordinance on 5-10-1981. Learned Special Judge after recording the statement of the petitioner summon the accused persons to face the trial.
Respondent No,3 entered appearance before the Trial Court on 5-7-1982 who sought time to settle the dispute with the petitioner outside the Court. The settlement could not take place between the parties. The learned Trial Court framed the charge on 19-11-1991 against the respondents.
Respondents filed an application under section 249-A read with section 265-K, Cr.P.C. In the Court of Special Judge Banking who dismissed the same on 29-3-1990. The matter was adjourned on various dates by one pretext or the other. The learned trial Court dismissed the complaint under section 247, Cr.P.C. For non-prosecution.
2. Learned counsel for the petitioner submits that the learned Trial Court had no authority under the law to dismissal the complaint for non-prosecution under section 247, Cr.P.C. The provisions of Criminal Procedure Code are applicable in the proceeding arising under section 9 of the aforesaid Companies Ordinance by virtue of section 7(1-B) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. He further submits that the impugned order is not sustainable in the eyes of law as it was passed on a date when the case was not fixed for hearing but for tracing the Court file which had been misplaced on 14-6-1999. He further submits that the impugned order was passed in the early hours of the day which is not in accordance. With the High Court Rules and Procedure. He further submits that the impugned order is not in accordance with law laid down by the superior Courts. In support of his contention he relied upon M.N. Salar's case 1998 PCr.LJ 1909.
3. Learned counsel for the respondents submits that Bank guarantees issued by the petitioner were cancelled and were set-aside. Therefore, respondents did not commit any offence and the complaint does not disclose any offence on account of subsequent events.
' He placed on record letter, dated 18-11-2000 sent by Chief Manager Muslim Commercial Bank to Managing Director of respondent No,2 under the heading confirmation of cancellation of Bank guarantors Nos.32/04 and 32/05 for Rs,44,58,140 each for favouring M.D, WASA Lahore. He also placed on record Bank Guarantees which were cancelled. He further submits that Managing Director of respondent No,2 requested the Manager of petitioner for return of cancelled Bank guarantees vide letter, dated 17-11-2000. The petitioner sent letter, dated 7-6-2000 under the heading release of Bank Guarantees and performance of bonds to M.D of respondent No,2. The Chief Manager of the petitioner wrote a letter on 22-3-2000 to the Director Finance WASA under the heading payment of claim of Rs,44,56,242 under our guarantee number 32/05 for Rs,44,58, 140, dated 5-4-1980 on account of Messrs Faisal International Construction Corporation. He further submits that impugned order is not a simplicitor dismissal order under section 247, Cr.P.C. The learned Trial Court has passed the speaking order as is evident from the contents of the impugned order that complainant failed to appear before the Trial Court on 14-6-1999 and 24-4-1999. He further submits that complainant did not place on record any justification for his non-appearance before the trail Court on 29-6-1999. The complainant failed to produce the evidence on the said date whereas the complaint was filed by the petitioner on 5-10-1981. He further urged that petitioner has filed this writ petition simply to harass the respondents malafidely and the petitioner does not approach this Court with clean hands. He further urged that substantial justice has been done between the parties. Therefore, writ petition is liable to be dismissed. He further urged that impugned order is in accordance with the provision of section 247 of the Cr.P.C.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. The order sheet reveals that the case was adjourned on various dates on the request of the respondents as the respondents wanted to settle dispute with the petitioner outside the Court. The matter was not settled between the parties and the charge was framed against the respondent by the Trial Court. The case was adjourned on various dates on account of non availability of the Presiding Officer. It is settled principle of law that nobody should be penalised by the act of the Court as per principle laid down by the Division Bench of this Court in PLD 1975 Lahore 7 (Mian Arshed Ali's case). Section 247 was interpreted by this Court in Khan Muhammad's case PLD 1999 Lah. 400 and laid down a principle and the relevant observation is as follow: "I would express and hold that where the offence of which the accused is charged is either cognizable or non-compoundable the provisions of the aforesaid section 247 of the Code of Criminal Procedure shall not apply. It means that the private complaint filed in terms of section 190 of the Code of Criminal Procedure for the prosecution of the accused for the offence(s) cognizable or non-compoundable cannot be dismissed in default due to the non-appearance of the complainant. My view is that by the insertion of proviso 2 in section 247 of the Code of Criminal Procedure through Ordinance No,XII of 1972 the criminal complaint pertaining to the offence of which accused in charged is either cognizable or non-compoundable cannot be dismissed due to nonappearance of the complainant even if the prospective accused has not been summoned."
' The aforesaid proposition is also fortified by the following judgments: ' 1981 PCr.LJ 704 (Muhammad Sharif's case).
' 1998 PCr.LJ 1909 (M.N. Salar's case).
' The accused respondents were summoned by the trial Court and charge was also framed under section 9 of Banking Companies (Recovery of Loans) Ordinance, 1979 punishable under subsection
(2) of section 9 with imprisonment of either description for a term which may extend to three years or with fine or with both. Subsection (3) of section 9 prescribes that all offence under, this section be bailable, non-cognizable and compoundable . The complaint cannot be dismissed either cognizable or non-compoundable due to non-prosecution of the complainant as is held by this Court in Khan Muhammad's case (supra). It is admitted fact that application filed by the respondent Nos.2 and 3 under sections 249 and 265-K was dismissed by the learned Banking Court, therefore, learned Banking Court was erred in law to acquit respondents Nos.2 and 3. Under section 247, Cr.P.C. Which is not in accord with the law laid down by the Division Bench of the Karachi High Court in 1988 PCr.LJ 1909 (M.N. Salar's case). It is also admitted fact that complaint was dismissed under section 247, Cr.P.0 for non-prosecution does not mention at what time it was dismissed the petitioner's counsel has taken a definite stand that the complaint was dismissed in early hours of the day which is not in accordance with the High Court Rules and Orders and the law laid down by the superior Courts. This plea of petitioner's counsel has a force. In arriving to this conclusion I am fortified by the law laid down by this Court in Punjab Kashmir Bank Ltd.'s case (PLD 1966 Lahore 356). The relevant observation is reproduced hereunder: "The order of dismissal does not show that the learned Civil Judge cared to wait for the plaintiff's counsel to appear. The exact hour of dismissal is not indicated on the file. It seems that no sooner the case was called, than it was dismissed because nobody immediately turned upto appear in response to the call. As pointed in rule 5 ibid, it is impossible to expect a man to remain constant attendance for the whole of the time during which the Court is sitting."
' In view of what has been discussed above, I am of the considered view that the impugned order, dated 29-6-1999 passed by the learned Banking Court No,1 Lahore is without any lawful authority and of no legal consequence, which accordingly, is set aside and the case is remanded to the Banking Court No,1 Lahore with the directions to conclude the trial and dispose of the case within a period of four months from the receipt of this judgment, in accordance with law. Parties are directed to appear before the Banking Court No,1 on 12-6-2001.