SINDH BANK LIMITED
.VS. M/S KASHMIR SUGAR MILLS LIMITED
Present: Accused Muhammad Ibrahim Tariq, Muhammad
Javed Shafi, Zahid Shafi, Muhammad Shahid Shafi, Ali Pervaiz, Muhammad Tariq
Shafi (died), Hasnain Tariq Shafi and Mian Muhammad Pervaiz Shafi are on bail.
Learned
counsel for the accused.
Learned
counsel for complainant bank.
O R D E R:
1- Today
the date was fixed for order on the application under Section 265-K Cr.P.C.
2- Brief
facts of the complaint are that Sindh Bank Limited as a complainant filed the
complaint in hand under Section 20 of Financial Institutions (Recovery of
Finances) Ordinance, 2001 (FIO) against all the accused persons namely Muhammad
Ibrahim Tariq, Muhammad Javed Shafi, Zahid Shafi, Muhammad Shahid Shafi, Ali
Pervaiz, Muhammad Tariq Shafi (died), Hasnain Tariq Shafi and Mian Muhammad
Pervaiz Shafi, with the allegations
that all the accused are
directors of M/S Kashmir Sugar Mills
Limited (accused No.1) and in the Board of Directors meeting held on 27-02-2018
that all with their common intention resolved that the Complainant Bank be
requested to provide finance facility to the Company accused no 1, that it was
further resolved that any one Director or Company Secretary would be authorized
to negotiate with the bank singly, operate the account singly and execute
security/charge documents singly as and when desired by the Bank, that the
accused No.1 requested the Bank for
grant of cash financial facility in the light of resolution dated 27-02-2018,
that the accused , in order to avail financial facility provided copy of the
resolution passed by its Board of Directors along with Form-A and Form-29, that
the Bank being a reputable and compliant financial institution allowed
financial facility of Cash Finance for an amount of Rs. 354000000/- to the
Respondents, thereby, a Banking Facility Offer Letter bearing No.
SNDB/0603/2018 was issued in favor of the accused No.1 on 29-03-2018, that the contents and the
terms and conditions of the Offer Letter were unconditionally accepted by the
accused No.1 and accused No. 3 signed and stamped the Offer Letter on
Company's behalf, further, the amendment in the Offer Letter was made vide
Letter dated 17-04-2018 whereby the existing limit of Rs. 300,000,000/- was
revised as Rs. 258,000,000/-, that in consideration of the finance facility
availed from the Bank, the accused No.1
through accused No.3 entered into an
Agreement for Financing on Mark-up Basis dated 30-03-2018, that the said
Agreement was stamped and witnessed in accordance with the statutory provisions
of law, that on 30-03-2018, the Company through
accused No. 3 executed a
Promissory Note for Rs.354,000,000/- in favor of the Bank wherein the Company
promised to pay the Complainant Bank a sum of Rs.254,000,000/- as consideration
for availing of finances from the Bank,
that the said Promissory Note was stamped and witnessed in accordance with the
statutory provisions of law, that the accused
No.1 acting through accused No. 3
undertook to properly use and utilize the facility for the specific purpose
mentioned in the banking facility letter dated 29-03-2018 or as may be allowed
by the Bank, that the Company further undertook that the facility shall not be
disbursed or delivered to any of its subsidiary or associated companies, that
in order to secure the re-payment of amounts availed as finances from the Bank,
that all the accused provided Personal Guarantees under which they made
themselves jointly and severally liable for the repayment of finance facility
and further undertook that their liability under this guarantee shall be that
of principal debtor and Bank may at its option hold him/them primarily
responsible for the liabilities of the accused no1 , thereby, Personal
Guarantees were executed by all the accused
which were duly signed and stamped by the respective Guarantors and were
witnessed by two competent witnesses in terms of the requirements envisaged
therein in Qanun-e-Shahadat Ordinance, 1984 and other laws related thereto,
that the accused No. 1 through accused No. 2 executed a Letter of Pledge dated 03
04-2018 whereby Respondent No. 1 Pledged Goods/ Stock/ Sugar Bags (164,000
Bags) up to R4375,000,000/-, that the charge over pledged goods/stock/sugar
bags worth Rs. 375,000,000/- was created in favor of the Bank through a Letter
of Pledge and same was registered with the Joint Registrar of SECP through
Form-10 therefore the total value of "Pledge Stock" pledged in favor
of the Bank by Company came to Rs. 375,000,000/-, that all the accused in connivance
with each other and with the assistance of the Muccadum (M/S. Moghul &
Sons), misappropriated the pledged stock, that this fact came in to the
knowledge of the Complainant on 28-03-2019 upon inspection of the pledge stock,
that copies of Letter of Pledge, Form-10. Certificate of registration of
mortgage, etc, stock reports of pledge dated 18-04-2018, 19-04-2018,
30-06-2018, 31-07-2018, 29-09-2018, 31-10-2018, 31-12-2018, 31-01-2019
28-02-2019, and documents of joint inspection of pledge stock dated 29-06-2018,
07-09-2018, 26-12-2018 28-03-2019, that Muccaddamage Agreement date 22-11-11,
that the accused have remained ignorant
towards the payment of principal amount of Rs.258,000,000/- and mark-up
Rs.16,988,839.83/- due on the finance facility and have thereby displayed a
negligent behavior in terms of fulfilling contractual obligations, that the
Accused persons in connivance with each other and with the assistance of
Muccadum have misappropriated the pledged stocks (164,000 Sugar Bags) lying in
the "M/s Kashmir Sugar Mills Ltd" situated at 11-Km Shorkot Cantt.
Road, Tehsil Shorkot, District Jahang, that due to misappropriation of pledged
stock and due to breach of obligations/ terms of finance documents the Accused
persons are guilty of the offense of Misappropriation, etc. and liable to be
prosecuted and punished accordingly in terms of section 20 (1) & (2) of the
FIO, 2001, thereby the Bank has filed
instant complaint in order to seek legal remedy U/S. 20 of the FIO,
2001, that in view of the submissions made above, it is most respectfully
prayed that the Respondents/Accused persons may kindly be convicted under
section 20 (1) & (2) of FIO, 2001 for misappropriating, alienating and
depleting the charged/ pledged above said goods/sugar from the possession of
Complainant, willfully, illegally and for wrongful gains. Hence this complaint.
3- In
the said complaint, the accused were summoned to face the trial. They appeared
before the court and submitted their surety bonds. Copies under section 265 C
Cr.P.C were provided to all the accused
and during this the application in hand
was filed by all the accused, wherein it is contended that the complaint has
been filed on the basis of alleged misappropriation of pledged stock lying at
"M/s. Kashmir Sugar Mills Ltd"
situated at district Jhang , that as per
contents of the complaint the place of occurrence as alleged in the complaint
is district Bahawalpur, which come under
the jurisdiction of banking court Bahawalpur, whereas the complaint has been
filed in Banking Court Lahore, that as per law explained under 177, 179
and 181(2) Cr.P.C, this court got no
territorial jurisdiction to entertain the said complaint.
4- In
addition to the said arguments of jurisdiction, other arguments were also advanced by learned counsel for the
accused on merit of the case that the
complaint is based on malafide and the complainant got no proof of alleged
misappropriation of the pledged stock as available on record, that no stock
report is appended with the complaint which can show the loss of pledged stock,
that the complaint was not filed by the competent person, that no proof of
alleged misappropriation of stock is provided with the complaint, that the
complaint is based on bald allegation and there is even no document to support
the stance of the complainant, that no document to incriminate the accused are
available with the complaint, that the provision of section 20 of FIO are to be
strictly applied under Section 21(a) FIO which deal with the said allegations
wherein there is no letter of hypothecation rather the criminal complaint has
been filed on the account of letter of pledged, that as per the complaint the allegation is that the guard of the bank
were not allowed to enter in the bank, that no date , time is mentioned in complaint
which is mandatory in criminal trial, that no offence in term of section 20 (a)
FIO is made out against the accused and
all the charge are groundless, that the
dispute between the parties is of civil nature and the remedy if any, is there then it is civil
nature and the present complaint is misconceived qua all the accused, that all the accused were
wrongly implicated in this case, that due to the said reason, the application
under Section 265 K Cr.P.C is justified because to proceed further with the
complaint is amount to wastage of time of the court and the said application
may kindly be accepted and the accused may kindly be acquitted.
5- Learned
counsel for the bank has argued that this court got fully jurisdiction to
entertain/ decide the said complaint because not only the head office of the
accused company but the head office of the complainant bank is at Lahore, that
all the relevant documents through finance was executed were prepared at head
office on the part of the accused with their common intention/ object, that the
terms and conditions as agreed by all
the accused were settled at Lahore in the office of the bank and the
said terms and conditions were violated at Lahore , that in the said situation, the complaint was filed at Lahore , that when
the complaint was filed, this court has summoned the accused while perusing all
the record and if any, issue of jurisdiction was there, then the same would
have been addressed by the court itself,
but the court was of the view, that this court got the jurisdiction that is why
the accused were summoned, that said
summoning order has not been assailed so far which attained finality, that the
acceptance of this application is amount to review the said order which is not
permitted in criminal procedure code, that Section 181 (2) Cr.P.C is very much
clear on the said points, that parties have their business in Lahore and the
loan sanctioned from DHA Lahore Branch, that in terms of clause (3) and (4) of
the letter of pledge and Hon'ble Supreme Court’s Judgment 2016 CLD 895, the
complainant bank only have the constructive possession of goods, therefore,
misappropriation of goods/sugar bags is an offence under Section 20(1) of FIO
2001, that as the respondents have breached the terms of finance documents,
therefore, they have committed an offence in terms of Section 20(1)(2) of FIO
2001. Learned counsel referred 2016 CLD 1493, case titled Bank Al Habib Limited
vs M/S Khalid Javed and brothers and 2016 CLD 895 case titled M/S World Trans
Logistic vs Silk bank and others.
6- Argument
heard and record perused.
7-
First, I take up the issue of jurisdiction. It added that the FIO is special
law and the complaint file under section 20 of FIO cannot be treated like other
complaint as normally filed in general criminal trial. In general criminal
trial the complaint is an alternate/ private prosecution, which can be availed
only in a few countries across the world including Pakistan. In general
criminal trial, where the occurrence took place, normally the said court takes
the cognizance of the said offence, because in general criminal cases, the place of occurrence
matter and subsequently, if the recovery is effected then it also matter, but
in the complaint in FIO there is no issue of recovery etc and the fate of the
complain is to be concluded on the basis of documents.
8- The
allegations of the complainant are that the terms and conditions as agreed by
the accused about the pledged stock were violated and the all the accuse
committed breach f trust and obligation while forcibly taking away the pledged
stock which come under Section 20
(a&b) of FIO. So, if the stock lying
at JHANG was misappropriated then it does not mean that the Banking Court which
deal the said District can only deal the said issue. Further it is the
discretion of the court and it will be more appropriate for the court because
the parties/ witnesses are residing at
Lahore and the documents which are the basic/ original material to conclude the fate of this
complaint are also lying in the head
office at Lahore which can easily be summoned to conclude the fate of the said
complaint.
9- Section
7 of the FIO provides some guidelines to deal the complaint as filed in section
20 of the FIO. It is proved in sub-section 2 of section 7 that when in FIO no
procedure is provided then Cr.P.C will be applicable. Here section 5 of the FIO
deals with establishment of the banking court and in sub-section 3 of FIO it is
provided that the honorable high court can transfer the case from one banking
court to other for the convenience of the parties and witnesses. Here in the
case in hand analogy can be drawn from said section. Here not only the parties
and witnesses are from Lahore, but the whole record was prepared/ available at
Lahore, because both parties have got their head offices at Lahore. Reliance is
placed on 2014 CLD 1710.
10- In
addition to said situation section
181(2) Cr.P.C is very much clear/relevant and for ready reference, I hereby
reproduce said sub-section as under:-
“Criminal
misappropriation and criminal breach of trust. The offence of criminal
misappropriation or of criminal breach of trust may be inquired into or tried
by a Court within the local limits of whose jurisdiction any part of the
property which is the subject of the offence was received or retained by the
accused person, or the offence was committed”
11- Firstly,
word may has been used in said provision and in the same way, word may has been
used in all the other relevant sections of territorial jurisdiction in PART VI
chapter 15 of Cr.P.C, from 177 to 183 Cr.P.C. So, it is the discretion of the court to entertain the complaint at Lahore
or at Chakwal. For the sake of convenience of both the parties/witnesses and
availability of the record at the head offices of both the parties at Lahore,
my learned predecessor summoned the accused at Lahore and said summoning order has
attained the finality.
12- In
the said sub-section it is provided that the offence of criminal
misappropriation or criminal breach of trust may be inquired into or tried by
the court within the local limit of whose jurisdiction, any part of the property
which is subject matter of the offence
was received or retained by the accused person or the offence was committed.
Here at Lahore all the accused got executed all the documents through finance
facility was provided to all the accused. From the face of record it appears
that all the accused committed criminal
breach of trust at Lahore. So in my humble view there is no territorial
jurisdictional issue in this case.
13- Now, I come to the merits of the application. I want to differentiate section
249-A Cr.P.C and section 265 K Cr.P.C. The criteria to apply both the said
provision of law are different to each other. Section 249-A Cr.P.C is meant for
magisterial trial and section 265 K
Cr.P.C is meant for session trial. Another difference in both the said provisions of law
is that, there are two grounds in 249 A Cr.P.C
to acquit the accused at any stage of the case, i.e. when the charge is
groundless and the second one , when there is no probability of the conviction
of the accused, but as far as section 265 K
Cr.P.C is concerned, only one ground is provided there like when there is a no probability of
conviction of the accused, then under 265 K Cr.P.C in session trial the accused can be acquitted
at any stage.
14- It
is argued that charge is groundless. It is added that the complaint in hand is being tried as a
session trial as the section 7 sub section 1(b) FIO is very much clear, wherein it is clearly provided that to exercise the criminal jurisdiction and try
the offences under the FIO the procedure of
trial would be of Court of session and not magisterial trial. So the
argument that charge is groundless
cannot be taken up here, because in 265 K Cr.P.C
only the issue of no probability of conviction of the accused
can be considered, which is not possible at this stage especially when not
single witness is recorded.
15- The
other legal issue/ argument is
that, at the most it's a civil
liability and cannot be converted into
criminal one as did in the present
complaint and the present complaint is not proceed-able/ maintainable. It is
added that section 20 FIO, is a special provision of law and most of the
ambiguities have been clarified through a landmark judgment reported in 2017
SCMR 1218 case titled Syed Mushtaq Shah and others vs. FIA and others.
16-
Further I would like to discuss the said issue of criminal and civil trial
with some detail, because more then
hundred complaints are pending in this court and almost in all the complaints
said issue is raised by the defence counsel.
17- Both
these trials are different to each others and some time, on some legal and
practical issues, we are confused. For
instance, pleadings don’t matter in criminal side and criminal trial is mostly
based on oral evidence, while pleadings and documents in civil trial play a
vital role. Limitation has been provided in statute to establish civil rights
and is always material. Each day of
delay is to be explained, but no such statute is for criminal trial. Delay to
report the matter can be fatal, if the same is not properly explained. While
deciding criminal case state is always third party, but it is not necessary in
most of the civil matters.
18- In
civil suits at certain level of value of the suit, court fee is required, but
no such issue is in criminal side. In civil trial according to value of the
subject matter, forum is decided in the light of civil court ordinance 1961,
but no such issue is in criminal trial, here the cognizibility of the case
matters which is to be taken up/ decided by the area magistrate in almost all
the cases except some special laws like FIO and OIB ordinance 1984 etc.
19- In
a civil trial at initial stage plaint is filed, while on criminal side FIR, is
registered or complaint is filed, complaint may be oral in nature. In police
case investigation is conducted by police, while in a civil trial, court
observe the contents of the plaint at initial stage and can reject the plaint
under Order 7 Rule 11 C.P.C, and the same situation is with the police case
where the I.O, can recommend the case for cancellation and court can agree and
even the court itself can cancel the
case.
20- In
civil trial to rebut the contents of the plaints, written statement and defence
evidence is necessary, while in criminal trial accused controverts the
prosecution evidence through cross examination etc and under section 265-F(V)
Cr.P.C, accused can submit written
statement in his defense and he can also submit his defence evidence in the
shape of defense witnesses and documentary evidence.
21- In
civil trial after perusing the pleadings courts frame the issues and in
criminal side courts frame the charge. In civil trial under Order 7, Rule 11
C.P.C, court can reject the plaint under certain conditions. In criminal side
u/s 249-A and 265-K Cr.P.C, accused can be acquitted at any stage of the case.
In civil trial in case of non-jurisdiction, case is returned to the party u/o 7
rule 10 C.P.C, to produce it before proper forum, but no such specific
provision is in criminal trial. However, in case of non-jurisdiction, the
prosecution is asked to place/file its case before relevant court.
22- There
is a difference of onus of proof because in a criminal trial, it is almost on
the prosecution and in exceptional circumstances, shifts to the defense, while
in a civil side, it is on the party who is claiming the relief and is also
determined by the court while framing issues. Criminal trial is concluded in
conviction or acquittal, while in civil trial the relief sought by the
plaintiff either decreed or dismissed. In criminal trial, state is always
complainant while in civil trial private and public person both can file the
plaint and sometime private person has to seek permission from the Advocate
general to file a suit. Under Section 250 Cr.P.C, court can direct the
complainant to pay compensation to the accused, after giving notice to the
complainant, if the case is false. In civil trial court can impose compensatory
cost under Section 35-A C.P.C, against the plaintiff.
23- The
rules of evidence of civil and criminal trial are almost same, but some
provisions in the Qanun-e-Shahadat Order, 1984 are peculiar to criminal trial
and other are peculiar to civil trial. In a civil case a mere preponderance of
probabilities is a sufficient basis for decision, while in a criminal case
guiltiness of the accused must be amount to such a moral certainty as persuades
the mind of the court beyond all reasonable doubt and this rule as a prudence,
has in fact attained the force of law, founded on public policy.
24- The
parameters to conduct the cross examination in civil and criminal trial are different in nature. In a criminal
trial, time, date, place and mode of
occurrence got material role in the evidence of the eye witnesses and
most of the cases are based on oral evidence to that of documentary evidence
and in exceptional cases documentary evidence got some importance to fix the
liability in criminal cases .If there
are contradictions in the above said time, date, place and mode of
occurrence in the evidence of the prosecution witnesses, then normally the
prosecution evidence is disbelieved and accused is acquitted while giving
him benefit of the doubt. But
contradictions in time, date and place are not so important in civil trial,
because civil suit is decided on the basis of preponderance of probabilities of
the facts of each case.
25- In
a criminal trial a number of legal shelters have been provided to the accused,
being a favorite child of law i.e, delay in lodging FIR, always go in favour of
the accused , complete check of the magistrate on the investigation proceeding
of the police, within 24 hours arrest of the accused the production of the
accused before magistrate with the reasons for arrest , to complete the 173
Cr.P.C report within a fourteen days, cognizance of the magistrate whether the
case is proceed able if so, it is
triable by him or by session
court, framing of charge and if charge is not made out acquittal of the
accused, provision of legal assistance
on state expenses to the accused, right of cross examination and putting of
incriminating evidence in section 342 Cr.P.C. These are the protection tears to
the accused. In the light of said situation, the fate of the criminal case is
decided.
26- But
no such protections are for the defendant in a civil side and both plaintiff
and defendant are treated on equal footing. Here anybody can convince the court
that he got oral as well as documentary evidence in his favour and most of
probabilities of facts are also in his favour to that of other party and can
ensure the relief.
27- Evidence
of the eye-witness in criminal
trial in the form of
examination-in-chief without cross examination is an admissible piece of
evidence and can be legally taken into
consideration, if fully corroborated/ supported by
other pieces of evidence, like medical evidence and recoveries etc. But
to believe it against the defuse extra care and caution is required, because
without cross examination it remains evidence and cannot get the status of
testimony, because for that purpose cross examination is necessary.
28- Evidence
of eye-witness in criminal trial in the
form of his examination-in-chief cannot be rejected on the simple proposition
that he was not subjected to cross-examination, if the accused had himself
avoided in a deliberate and calculated manner to avail such an opportunity.
Distinction had to be drawn between the two situations, one where opportunity
to cross-examination was not given or denied to the accused , and second where
it was given, but deliberately not availed of by the accused. In the latter
position the accused can badly suffer. If the right to cross was reserved as
per request of defense and the witness is died or not available for cross, then
too, the defense will suffer. Reliance is laced on PLD 2010 SC 642 Arbab
Tasleem case, PLJ 2011 SC 117 and PLJ 2018 SC453 Sadiq case. PLD 2001 Lahore
463 is otherwise, but after the views of apex court said view will not matter.
29- In
the civil trial said factors treats otherwise. If statement or any part of a
statement of a witness which remains un-rebutted/ un-crossed, is amount to
admission and effect the fate of civil cases, because civil cases are concluded
on preponderance of probabilities of the evidence of the parties, and in criminal
cases prosecution has to prove its case on its own beyond any shadow of doubt
or reasonably. So question of un-rebutted evidence will effect civil and criminal trial in different ways. Reliance is placed on 2018 SCMR 149.
30- As
per articles 117,118 119, 121 and 122 of
Qanun-e-Shahadat, order 1984 burden to
prove guilt of the accused beyond a
reasonable doubt throughout the trial is on the prosecution and it never shifts
to accused except in cases falling under Art. 121 of Qanun-e-Shahadat, 1984.Two
concepts i.e proof beyond reasonable doubt and presumption of innocence are
closely linked with each other. Presumption of innocence is the golden
principal of criminal justice system and proof beyond a reasonable doubt is
silver principal and these two got importance in criminal justice system.
Prosecution is not required to prove its case to an absolute certainty because
such high standard cannot be achieved. Proof beyond reasonable doubt does not
mean proof beyond all doubts. Law requires that after perusing all evidence, if
there is something in evidence or lack of evidence that leaves in the minds of
Judges, a reasonable doubt as to the guilt of accused, then accused must be
given the benefit of that doubt and acquitted, even if the court believes that
the accused is probably guilty or likely to be guilty, that is not sufficient.
Proof beyond a reasonable doubt is proof that precludes every reasonable
hypothesis except guilt and is inconsistent with any other rational conclusion.
31- If
prosecution failed to prove the guilt of the accused, then accused would
be acquitted in all respect, even
accused confessed his guilt ,then too
accused will be acquitted .If prosecution reasonably proved its case then
court can see version of defense, but criteria to prove
defence version would not be like that of prosecution, and
version of the accused would be taken in totality and no pick and
choose is allowed. Reliance is
placed on 2011 SCMR, 639 and 942 and 2010 SCMR 1706. Where a witness introduces
familiar / known persons as culprits at later stage, then the first burden
shall be that of explaining reasons which prevented him / her from naming
familiar / known persons in the FIR against unknown persons. Reliance is placed on 2019 MLD 182.
32- In
civil side the burden of proof lies on the person who files a suit or
proceeding to ensure his civil rights. The burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence. It
is apparent from articles 117 and 118
that once initial onus has been discharged by the party upon whom it was
resting, it would shift to the other party for its rebuttal thereof. So in
civil side there is competition in both the parties to prove and disprove the
stances of each others.
33- The
criteria to prove the documents in civil and criminal trial is different to
each other. In civil trial mere marking or exhibiting of documents would not
dispense with requirement of proving the same and the same cannot be exhibited
unless it is proved. Admitting of photocopy of a document in evidence and
reading the same in evidence without observing legal requirements of Article 76
of the Qanun-e-Shahadat Order, 1984 would be illegal. Further to prove the
contents of document article 79 of The Qanun-e-Shahadat Order, 1984 will
matter, but said article is not so important in criminal trial. In criminal trial maker/ scribe of the
document will matter to prove the contents of the same and there is no restriction
to produce two marginal witness of the same as in the case of civil trial. In
civil side to prove agreement to sell etc
two marginal witnesses are necessary as per article 79 of The Qanun-e-Shahadat Order, 1984,
but the contents of FIR or
complaint only can be proved by the complainant or by the scribe who wrote the FIR etc.
Further there is no issue of quantity of evidence e in criminal trial like
civil trial. In criminal trial only quality of evidence matter.
34- There
is difference between burden of proof and onus of proof. The Burden of Proof is
the burden to prove the main contention of party requesting the action of the
court, while the Onus of Proof is the burden to produce actual evidence. The
Burden of Proof is constant and is always upon the claimant, but the Onus of Proof
shifts to the other party as and when one party successfully produces evidence
supporting its case. Reliance is placed on AIR 1964 SC 136 and AIR 2006 SC 197.
35- Probability
and benefit of doubt are two different terms of law and both said terms have not
been explained in any code, however these have been taken up in various
judgment of superior court. A probability is a state of things that reflects
the chance or likelihood that a particular event can occur. Probabilities can
be expressed in proportion like its range from 0 to 1, and these can also be
expressed in percentages ranging from 0% to 100 %. While word benefit means
advantage, gain or interest and doubt mean misgiving, suspicion and uncertainty
etc. The accused is entitled to have, the benefit of doubt as a matter of
right. Accused being a favorite child of law is to be treated as innocent
unless he is proved on the basis of best possible evidence that he was
connected with the commission of crime.
36- In
a criminal case when two explanations of law are equally possible then the
explanation in favour of the accused would considered. Not necessary that there
existed so many doubts in the prosecution case, rather any reasonable doubt
arising out of the prosecution evidence,
convincing the prudent mind is
sufficient to justify the acquittal
of the accused.
37- Rule
of benefit of doubt is a rule of prudence which cannot be ignored and said rule
is based on maxim that “it is better that ten guilty persons be acquitted
rather than one innocent person be convicted” it means that utmost care and caution is required to convict an accused. Said rule is the basic
philosophy of Islamic criminal justice system and as per saying
of Holy Prophet (P.B.U.H) “Mistake of Qazi (Judge) in releasing a criminal
is better than his mistake in punishing innocent”. Reliance is placed on PLD 2002 SC 1041 and
2015 P Cr. L J 1171.Law does not rely upon conjectures and surmises and accused
cannot be convicted on the basis of probabilities and presumption, however
probabilities can be considered as additional circumstances, if other
incriminating evidence is there against the accused.
38- I
just simplifies/explains the issue of probability. A suit for specific
performance is filed on the basis of agreement to sell between A and B about
landed property. The probabilities in favour of the plaintiff can be like that,
he is in a position to purchase the property from defendant, the defendant was
in need of money for certain reason due
to which he sold out his landed property , the disputed property was adjacent
to the plaintiff and was also needed to the plaintiff , possession was
delivered to the plaintiff, at the time of agreement both were enjoying
visiting term and got no enmity, if the agreement to sell was written in nature
, then vis a vis above said
probabilities of facts the legal
formalities in the shape of article 3, 17 and 79 Qanun-e-Shahadat Order, 1984
are also to be proved by the plaintiff .
39- The
probabilities in favor of the defendant can be like that, the plaintiff is a
poor person and he got no resources to purchase the property, defendant got no
need to sell his property, property was already sold out through another
agreement to sell to some stranger and this fact was in the knowledge of the
plaintiff, there was enmity between the parties at the time of alleged
agreement and how can he enter into agreement with the plaintiff, plaintiff got
ulterior motive to file fake suit just to take advantage in another issue in
which the defendant got interest.
40- These
are the probabilities of facts which can
be placed before the court and after observing all the legal formalities the
court will observe the preponderance of probabilities and the party who got
more numbers of probabilities of facts in its favour can be accommodated in the
shape of degree of the court. For instance if the defendant got 51
probabilities in his favour and plaintiff got 49,the suit will be dismissed in
spite of the fact that the plaintiff observed all the legal formalities to
prove the contents of the agreement to sell. Sometimes sole probability changes
the fate of the suit. For instance it is proved that at the time of agreement
there was strong enmity between the parties, then court will not decree the
suit because in such situation defendant cannot sell his property. Being
appellate court, I have seen a number
of judgments where my learned brothers judges decided the
civil matter on the basis of
contradiction, confrontation and improvement in the statements/ evidence
of the witnesses, these aspects got very
minor role to decide the fate of civil suit.
41- In
the Civil trial, various remedies are available including damages, an
injunction ordering someone to stop doing something or an order for specific
performance. Where a claimant’s case is successful, the court will order an
appropriate remedy. For instance, if the claim is for a sum or money, the
defendant will be ordered to pay the amount claimed. Damages may also be
awarded where there has been a financial loss, but no such remedies are
available in criminal trial. A breach of criminal law is seen as a wrong not
against an individual but against society as a whole. If an individual breaches
the criminal law and commits an offence, he will face the criminal prosecution by the state and, if
convicted, will be awarded with fines
and imprisonment etc.
42- But
there are some exception like section
522 Cr.P.C where court pass the order to return the possession to the aggrieved
person and 516 and 517 Cr.P.C where on temporary basis the court hands over the
case property to the actual owner.
43- There
is a misconception that civil and criminal proceeding cannot run side by side.
Respectful reliance is placed on 2016, SCMR 512, 2017 SCMR 390, 2018 SCMR 839
and 2018 MLD 1373 that both can run side by side.
44- It
is argued that the time, date and specific place are not specially mentioned in
the complaint which is basic requirement of criminal trial. It is added that
FIO is special law and the charges leveled in the complaint are mostly to be
proved on the basis of documents and not on the oral evidence like in general
criminal trial.
45- I
have gone through the contents of the complaint, the record attached with the
complaint and the contents of the application as filed by the accused and came
to the conclusion that the accused themselves approached to the complainant
bank and on their request finance facility
Rs.354000000/- was sanctioned in
favour of all the accused and as a result thereof, the accused got
executed documents as mentioned in the
complaint. In addition to hypothecated assets the accused also got pledged raw
material, finished and semi finished products of the business of the accused.
To protect the said articles which were under the direct possession of the
accused , a muqadam was appointed by the bank and in connivance of
muqadam the pledge stock was illegally and forcibly
taken away by all the accused which
prima facie attracts the
provision of section 20 (a&b)of FIO.
46- It
is added that all the said things shows that the accused are prime facie
involved in this occurrence and at this stage, without recording the evidence,
how this court can come to the conclusion that there is no probability of the
conviction of the accused, when the not only the oral but documentary evidence
is available on record against all the accused. At this stage, in my humble
view, the application as filed by the accused is premature and the same is
hereby dismissed. Now to come up for framing of charge for 02.12.2021.
|
Announced: 25.11.2021 |
Malik
Munir Ahmad Joyia Judge
Banking Court-V, Lahore |
No comments:
Post a Comment