This order will dispose of two Criminal Original Miscellaneous Applications No.20 of 1992 and 21 of 1992: Arguments of the learned counsel are heard on the application (M.A. No.249 of 1995) in Criminal Original Miscellaneous Application. No.20 of 1992, which is an application under section 265-K, Cr.P.C. On behalf of the accused Huzoor Bux and Istaqbal Hussain, who are facing the trial on original side in this case, for an offence punishable under section 83 (1-C) read with sections 43-D and 43-E of Banking Companies Ordinance, 1962. This application was moved with a prayer that the accused may be acquitted without proceeding any further. The contention of the learned counsel for the accused was that considering the entire prosecution case, there is no possibility of the case resulting in conviction of the accused, hence they deserved to be acquitted at this stage.
2. The State Bank had relied on the evidence that the present accused were partners of a firm named as "Reliant Enterprises" and had based the entire prosecution on this fact. The learned counsel, however, pointed out to the evidence of P.W. Shahid Memhmood, the Banking Officer of the State Bank of Pakistan, which was recorded on 12-12-1993 and the cross-examination had concluded on 8-8-1994. The learned counsel 4or accused pointed out from the evidence of this witness that he had admitted that the firm "Reliant Enterprises" had been dissolved on 8-12-1987 and after the dissolution of this firm a company under the name of "Reliant Enterprises (Pvt.) Ltd." had come into being on 29-12-1987. The certificate of incorporation of this company under the Companies Ordinance, had also been produced in evidence. From the memorandum and Articles- of Association, it was pointed out that the present accused were not the directors of the said company, and therefore, it was contended that the required notice by the State Bank, before filing of the case, was not issued against the accused as, at the relevant time they were not the members of the partnership firm and subsequent to that they had also not joined as directors of the private limited company, and hence they could not be convicted, as a result of the directive/notice, issued by the State Bank against them.
3. On referring to the facts, it is an admitted position that the notice under the provisions of the State Bank, for the first time was published against the accused person in the year 1989 and the action was proposed against the firm and its partners. But it has been proved that in the year 1989 the accused were not the partners of that firm and that the said firm did not exist in 1989. As such the whole prosecution is based on the notice which was not against proper persons, therefore, .The State Bank shall not be able to prove its case under the law in which the accused could be convicted.
4. The learned counsel for the complainant, however, has taken the stand that the notice had been served on the basis of investigation and evidence, which was in the knowledge of Off cers of the State Bank at that time although he admitted that at the time of the issuing of notice against the accused in the capacity of partners of the firm, the firm stood dissolved.
5. After considering the arguments of both the sides I find that first notice on which prosecution was based, was in the name of the partnership firm named "Reliant Enterprises" and the accused Hazoor Bux and Syed Instaqbal Hussain Naqvi were not the partners of that firm. In the year 1989 when the notice was published, neither this firm was in existence nor the present accused were partners of this firm. In the year 1989 "Reliant Enterprises Company Ltd." was in existence but the present accused were not the directors of that company. As such it cannot be said that the notice was published against the proper accused, and consequently, the prosecution cannot succeed on the basis of such defective notice.
6. Under the circumstances, I find that there is much force in the contention for the acquittal of accused at this stage, as the accused cannot be convicted in this case, on the basis of admission of the P.W. Above named who admitted that the accused were not the directors of the private limited company, which existed at the time of notice, while the firm in which the accused were partners already stood dissolved before the service of the notice. The above facts also stand proved from the documents produced in evidence.
7. Consequently,' the application under section 365-K, Cr.P.C: is allowed and the accused are acquitted. They are on bail. Their bail bonds are cancelled.