' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.--- Applicant Khalid Mukhtar, Vice-President, United Bank Limited, is facing trial before Accountability Court No,1, Karachi in three References Nos.41, 42 and 43 of 2000 on the identical allegations/charge.
2. Briefly stated the prosecution case is that co-accused, to wit, exporters, clearing forwarding and shipping agent, Customs Officials and Bank Officials at Dubai and Quetta hatched a conspiracy in pursuance whereof false export documents were fabricated and fictitious export from Pakistan to Dubai was declared, with the purpose and intention to obtain custom duty drawback and import licence for refund totalling to Rs,134,673,970 Foreign Exchange was remitted by Bank Officials at Dubai to the Bank at Quetta purporting to be export proceeds. On the strength of forged shipping bills the exporters submitted applications for export rebate and the applications were processed and sanctioned by the Customs Officials and thereby the exporters received cheques aggregating Rs,99,026,847 as payment of refund of customs duty. An account was opened at Quetta and the cheque issued by the Customs Officials was credited in the account. According to prosecution the offences alleged were punishable under section 156(1)(14) and (82) of the Customs Act.
3. Initially the challan was submitted in the Court of Special Judge (Customs and Taxation) at Karachi in the year 1992 and subsequently, on establishment of Accountability Court the case was referred to the Accountability Court. The applicant Khalid Mukhtar has submitted applications under section 561-A, Cr.P.C. Praying for the quashment of proceedings against him contending that three identical F.I.Rs, were lodged by complainant Muhammad Saleem, Principal Appraiser, Customs Karachi on 24-2-1992. The applicant was not named in the F.I.Rs, Subsequently, a, joint interim challan was filed before Special Judge (Customs and Taxation), Karachi and in the said interim challan also the applicant was not implicated. In the final challan name of applicant was included as accused on the allegation that in the year 1991 an Account bearing No,7100 was opened in the name of one Arshad Mahmood in U.B.L., Al-Haroon Branch, Karachi, on the introduction of applicant who was then Manager of the said Branch of the Bank. In the above account a bank draft of Rs,10 million issued by Habib Bank Limited, Complex Branch, Quetta, was deposited at the behest of co-accused Imtiaz Ali Taj and the said amount was subsequently, withdrawn. It is alleged that mere opening of an account in the branch of a Bank where applicant was posted as Manager does not amount to any offence, as a Bank account can be opened anywhere, at any time. It is alleged that if mere opening of account is treated as offence then no banker would be safe at any time.
4. It is further alleged that the applicant was the sole accused who was granted bail by the learned Special Judge (Customs and Taxation), Karachi in December, 1992 with the following observations:- - "I have considered the arguments advanced by the learned Advocate of the accused and the learned Prosecutor. The applicant might have deviated from the established rules and regulation in opening the account in favor of one Arshad Mehmood but this very fact does not lead to his involvement in respect of the bogus and fraudulent export of Polyester Jacquard Fabric and Glass Marble from Gawadar Port to Dubai, claiming Crores of rupees by way of export rebate, refund of customs duty and sales tax in the absence of any substantive and direct evidence pointing out his involvement in the aforesaid transactions. Furthermore, depositing huge amounts of money in the aforesaid account by the said Arshad Mehmood and allowing the same to be withdrawn on the cheques presented by or purported to be signed by Arshad Mehmood is also not sufficient to establish the participation of the applicant in the aforesaid illegal and fraudulent transactions."
5. It is further averred in the applications that the Customs Authorities also initiated adjudication proceedings under the Customs Act, 1969 and after thorough examination, the learned Collector of Customs, through three separate identical, orders in original being Nos.79 of 1994, 80 of 1994 and 81 of 1994 dated 23-2-1994 acquitted the applicant in the following terms:-- "However, the prosecution could not establish any charge levelled in the report against the Bank Officials namely Messrs Amin Bukhari, Muhammad lqbal Motiwala and Khalid Mukhtar, I, therefore, order their acquittal accordingly."
6. The applicant has further stated that he submitted applications under section 265-K, Cr.P.C.
Before the Special Judge (Customs and Taxation), Karachi but the applications could not be heard for the reason that the proceedings were stayed by High Court in Criminal Miscellaneous Application No,560 of 1994. Subsequently, the case was transferred to Accountability Court and the High Court in C.P. No,1139 of 2000 allowed the proceedings to continue but prevented the Accountability Court from passing the final judgment. Thereafter, the applications under section 265-K, Cr.P.C. Were submitted. The applications were rejected for the reason that the documentary as well as oral evidence was available with the prosecution.
7. It is furthur alleged that the two Bank Officials of Habib Bank namely Amin Bukhari and Muhammad Iqbal Motiwala, then posted at Dubai were shown as accused in the challan but the prosecution against them has been withdrawn although active role was attributed to them in the commission of fraud and causing huge loss to the public exchequer. It is also alleged that Bank Officials at Quetta who opened the account in which the cheque issued by the Customs Officials was deposited and credited in favor of the fake exporters have not been prosecuted at all.
8. It is asserted in the memo. Of petition that the sole allegation against the applicant, in the charges framed by the Accountability Court is that the applicant assisted in opening of Account No,7100 in U.B.L. Al-Haroon Branch, Karachi.
9. It is further alleged that 14 witnesses have been examined by the Accountability Court and none of them have implicated the applicant for commission of any offence and therefore, the pendency of trial against the applicant amounts to causing harassment and abuse of the process of Court, thus, the proceedings against the applicant are liable to be quashed.
10. We have heard Mr. Khalid Anwar, learned counsel for the applicant in all the three applications and Mr. Muhammad Anwar Tariq, learned DPGA for the State.
11. Mr. Khalid Anwar, has elaborated the contentions raised in the memo. Of petition as narrated above.
12. We asked Mr. Anwar Tariq, to show the evidence either recorded or sought to be produced, implicating the applicant for the commission of offence.
13. Mr. Anwar Tariq, stated that 14 witnesses have already been examined and the prosecution may be allowed opportunity to establish the charge against the applicant. He submitted that the prosecution case should not be guillotined and full opportunity be provided to establish the case against the applicant. He however, conceded that none of the 14 witnesses examined so far, have implicated applicant Khalid Mukhtar for commission of any offence. He was asked to show evidence which the prosecution intends to lead to establish the commission of any offence by the applicant. He submitted that one important witness namely Muhammad Azeem Memon, Assistant Vice-President, U.B.L., AlHaroon Branch, remains to be examined. Mr. Khalid Anwar pointed out that the prosecution has already submitted an application before the Accountability Court on 19-11- 2002 that P.W. Muhammad Azeem Memon, was required to produce the record of Bank Account No,7100 in the name of Arshad Mehmood, which is necessary for just decision of the case, however, after retirement he has permanently shifted to Dubai and is not available for examination. A request was made that another Bank Official in attendance may allowed to produce the Bank record. The request was allowed on 14-12-2002. P.W.12, Muhammad Moosa was examined in all the three references. P.W.12, Muhammad Moosa produced Bank record and stated that after verification it was found that Account No, /100 was opened in the name of Arshad Mehmood. The account was opened by Current Deposit Incharge. At that time Mr. Khalid Mukhtar was Manager of Al-Haroon Branch of U.B.L. He has further stated that the account opening form bears the signature and round seal of C.D. Incharge and that it was not known as to who introduced Arshad Mehmood at the time of opening account. He however, subsequently, stated that introducer of the said account was Khalid Mukhtar who was Manager at that time. He further stated in cross-examination that the original account opening form must be available in the record of the concerned branch but it was not available and account opening form produced by him was attested by Mr. Muhammad Azeem Memon, the then Assistant Vice-President who has retired. He further stated that in the column of introducer of account opening form the signature was admitted by C.D.
Incharge and according to his knowledge all formalities were completed by C.D. Incharge and subsequently the same was placed before the Manager for his signature. He conceded in the cross-examination that all the formalities for opening of account were fulfilled by the then C.D.
Incharge and the issuance of cheque book is also responsibility of the C.D. Incharge.
14. Mr. Anwar Tariq, was called upon to show as to what offence has been committed by the applicant even if it is accepted that the applicant opened the account and introduced one Arshad Mehmood. This question was asked in view of the statement of Mr. Khalid Anwar, that for the purpose of these applications under section 561-A, Cr.P.C., seeking quashment of proceedings against the applicant, all the contents of F.I.Rs, and the statements of prosecution witnesses are accepted to be true. Mr. Anwar Tariq was further asked as to when the offence was completed. Mr. Anwar Tariq conceded that by opening of account the applicant has not committed any offence punishable under any provision of the Customs Act, 1969. He has further stated that the offence of commission of cheating and fraud and causing loss to the public exchequer by claiming fake duty draw back and refund of customs duty was completed with the deposit of the cheque in the account at Quetta and credit of the amount in the said Bank. He however, contended that subsequently an amount of Rs,10 million was transferred from the Bank Account at Quetta to the account of Arshad Mehmood in Al-Haroon Branch of U.B.L., Karachi and according to him it amounted to the abetment of the offence. The learned prosecutor was then asked to read sections 107 and 108, P.P.C. The learned Prosecutor read both the sections and his attention was drawn to the fact that the abetment can take place either before the commission of offence or at the most at the time of commission of offence and not after the completion of the commission of offence.
The learned Prosecutor conceded that the offence was completed with the credit of amount in the Bank Account at Quetta and was not able to show as to how, the opening of Account at Karachi in which subsequently, the amount of Rs,10 million was transferred amounts to abetment of the commission of offences alleged.
15. We specifically asked the learned Prosecutor to show any other evidence sought to be brought on record which may establish the culpability of applicant in the commission of offences whereby a forgery and fraud was committed on the Government of Pakistan and a huge amount was withdrawn as duty drawback. The learned Prosecutor very candidly conceded that except the witnesses already examined no witness other than Muhammad Azeem Memon is remaining. He was asked to read 161, Cr.P.C. Statement of Muhammad Azeem Memon, to show that there is anything in his statement to connect applicant Khalid Mukhtar with the commission of offences alleged, directly or indirectly or by way of constructive/vicarious liability. On reading 161, Cr.P.C.
Statement of Muhammad Azeem Memon, learned Prosecutor conceded that although the record pertaining to account has already been produced through P.W.12 Muhammad Moosa, but even if Muhammad Azeem Memon is produced in evidence he will only prove the opening of account by Arshad Mehmood and introduction of said Arshad Mehmood by applicant Khalid Mukhtar. Thus, even if it is presumed that Muhammad Azeem Memon can be traced and produced in evidence and he supports his entire statement as reflected in 161, Cr.P.C. Statement, it will not improve the prosecution case, so far, the culpability of applicant Khalid Mukhtar is concerned.
16. After perusal of the entire evidence brought on record and taking into consideration the material available with the prosecution we are of the considered opinion that the sole allegation against the applicant is that he opened an account in Al-Haroon Branch of U.B.L. At Karachi. The learned Prosecutor totally failed to show if opening of an account, per se, amounts to commission of any offence. The question of any abetment does not arise as the account in Al-Haroon Branch of U.B.L. At Karachi was opened much after the offence allegedly committed by the Customs Officials, exporters and the Bankers at Dubai and Karachi was already completed in all respects.
17. Before parting with this order we would like to observe that there is substance in the contention of Mr. Khalid Anwar that, the Customs Officials and the Bankers who were initially alleged to be actively engaged in the conspiracy of causing huge loss to the public exchequer have been provided protection and have been let off the hook for the reasons best known to the prosecution and the authorities concerned. Since we have no seisin over the matters pertaining to the Customs Officials and the Bank Officials therefore, in their absence we would not like to make any further observation in this regard, except that letting off the persons allegedly involved actively in causing huge loss to the public exchequer and prosecuting the innocent persons declared so by the Adjudicating Authority of Customs Department, does not augur well of any system of administration of justice and particularly, pertaining to accountability process. On one hand it militates against the principle of across the board accountability, and on the other it ignores the salutary principle that the prosecution of innocent persons amounts to their persecution, adversely affecting the entire system, which should be scrupulously avoided. It is for the Authorities concerned themselves to examine this aspect argued very vociferously by Mr. Khalid Anwar.
18. Consequent to the above discussion, we are of the considered opinion that, there is no evidence whatsoever, against the applicant and there is no iota of any material against him even remotely connecting him with the commission of offences alleged and therefore, there is no probability of his conviction for any offence whatsoever. We are of the firm view that, pendency of proceedings against the applicant before the Accountability Court amounts to sheer harassment and abuse of the process of Court. It is, therefore, held that in order to secure the ends of justice it is imperative that the proceedings pending against applicant in Accountability Court No,1, Karachi in References Nos.41 of 2000, 42 of 2000 and 43 of 2003 be quashed and we do accordingly.
19. All the three applications are allowed as above.
20. After hearing learned Advocates for the parties on 9-6-2003 the applications were allowed by a short 'order. These are detailed reasons in support thereof.