SADRUDDIN ABDULLAH GANGJI vs THE STATE

' SARMAD JALAL OSMANY, J.---This is an application under section 561-A, Cr.P.C. Praying for quashment of the proceedings insofar as they concern the Applicant, pending before the Special Judge, Anti-Corruption, Central-I, Karachi in case F.I.R. No.22 of 2003 registered with Police Station F.I.A., Crime Circle-I, Karachi on 9-10-2003.

2. The brief facts of the matter per the aforementioned F.I.R., are that during the period between 30- 6-1995 to 31-8-1996 Applicant in collusion with his son and other co-accused is alleged to have caused colossal loss to Allied Bank Ltd. By illegally removing Palm Oil imported by companies owned by him from Malaysia from the Custom Bonded Warehouses viz. Without the permission of the said Bank under whose lien the Palm Oil was stored in lieu of Bank Loans given to the Companies owned by the Applicant. Hence offences were committed by the Applicant along with other co-accused under sections 409, 420, 468, 109 and section 34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.

3. In support of the application, Mr. Aitizaz Ahsan has firstly submitted that no case is made out under sections 409 and 420 of the P.P.C. Since the Applicant was never in control of the property in question viz. Palm Oil and also not entrusted with the same as locks were placed over the storage tanks by the Custom Authorities and the Bank which were guarded by their respective guards.

4. Secondly, learned counsel has submitted that on the same set of facts four other F.I.Rs. Have been lodged by the Customs Authorities against the applicant and other accused regarding the same transaction viz. Unlawful removal of the Palm Oil, which are F.I.R. No. 2 of 1997, dated 3-5-1997 of Police Station F.I.A. Crime Circle-II, Karachi; F.I.R. No. APPG-65/DCl/96, dated 6-10-1996 of D.. G.

Intelligence and Investigation (Customs and Excise); F.I.R. No.APPG6/DCl/97, dated 10-1-1997 of D.G.

Intelligence and Investigation (Customs and Excise) and F.I.R. No. APPG-6-A/DCl/97, dated 15-2- 1997 of D.G. Intelligence and Investigation (Customs and Excise). Consequently, per learned counsel, this is a case of double jeopardy and hence to be quashed on this ground alone. For this proposition, learned counsel has relied upon Astam Khan v. The State (1995 PCr.LJ 459), Ch. Wahid- uz-Zaman v. Jamil and 8 others (1997 PCr.LJ 1167) and Ramesh Udeshi v. The State (2002 PCr.LJ 1712).

5. Next learned counsel has submitted that Suit No.625 of 1997 was filed by the concerned Bank for recovery of its dues from the companies owned by the applicant based on the same pledged documents which was decreed in favour of the Bank, and hence the criminal prosecution against the applicant in order to settle a civil liability cannot be allowed to proceed under the law. In support of this submission. Learned counsel has relied upon Javed Hamid v. Hasan Jan (PLD 1991 Pesh. 121); Muhammad Shafiq v. Abdul Hamid (1992 PCr.LJ 229); Muhammad Idrees v. Ghee Corporation (1999 PCr.LJ 1025); Muhammad Yaqoob v. S.H.O. (1997 MLD 2097); Kaneez Bibi v. S.H.O.

(NLR 2000 Cr. 417); Mairaj Khan v. Gul Ahmad (2000 SCRM 122); Abdul Ghafoor v. Raeesuddin (1991 MLD 376); Manzoor Ahmed Khan v. The State (1982 PCr.LJ 1043); Ch. Waheed-uz-Zaman v. Jamil and 8 others (1997 PCr.LJ 1167); Shaikh Muhammad Taqi v. The State (1991 PCr.LJ 1963), Allah Rakhio v. The State (2001 PCr.LJ 1551) and Mahmood-ul-Hasan v. Imtiaz Khan (PLD 1963 (W.P.) Lahore 481).

6. Finally, learned counsel has submitted that the matter has been settled between the applicant and the Government vide agreement, dated 9-6-1997 whereby the applicant has agreed to liquidate his liabilities owned to the Customs Department and the various banks by sale of the properties mentioned in the Annexure to the said agreement which includes the surrender of the shares Sheraton Hotel etc. The total of which comes to Rs.2,000,000,000. Learned counsel has further referred to the letters, dated 21-1-1998 and 24-1-1998 addressed to the Chairman C.B.R.

Islamabad from the Joint Secretary Accountability Cell of the Prime Minister's Secretariat that as the Applicant had paid art amount of Rs.50,20,14,229 to the Customs Department against outstanding dues therefore, in the connected F.I.Rs. (mentioned above) the applicant's name be dropped as an accused and he be made a witness. Learned counsel also referred to various other letters from the Government of Pakistan addressed to the Allied Bank of Pakistan regarding the Applicant's desire to settle all his outstanding debts towards the Banks etc. Plus his own letters to the Bank for the purpose of settlement. However, despite the same the Bank has chosen to file the F.I.R. In question malafidely only to pressurize the applicant into a settlement of the former's choice.

7. For all the foregoing reasons. Learned counsel has prayed that the proceedings under the F.I.R. In question be quashed.

8. On the other hand, Mr. Mehmood Alam Rizvi, learned Standing Counsel has submitted that the offences in question.Viz. Under sections 402 and 409, P.P.C. In the present F.I.R. Are quite distinct from the offences mentioned in the other F.I.Rs. As those related to evasion of Customs duties etc. Secondly, per learned counsel, propriety demands that the applicant should have approached the learned trial Court first.

9. We have heard both the learned counsel and our conclusions are as follows.

10. It would be seen that the principles regarding quashment of legal proceedings by the High Court are very clear viz. This can be done where the case is of no evidence at all or where as a matter of law there could not be any possibility of conviction of the accused. To keep a case lingering on in the above circumstances would amount in fact to an abuse of the process of the Court. For this proposition reference can be made to: Mairaj Khan v. Gul Ahmed and others (2000 SCMR 122); Mian Munir Ahmad v. The State (1985 SCMR 257); Shahnaz Begum v. Hon'ble Judges of the High Court (PLD 1971 SC 677); Adamjee Insurance Company Limited v. Assistant Director, Economic Enquiry Wing (1989 PCr.LJ 1921); Anwar Ahmad Khan v. The State (1996 SCMR 24) and Muhammad Latif v. Sharifan Begum (1998 SCMR 666).

11. The facts of the present case would reveal that previously four different F.I.Rs. Have been lodged against the applicant wherein the allegations are that he in connivance with the co-accused had removed the Palm Oil stored in the tanks owned by his company without payment of custom duty etc. As per correspondence placed on the record which has, not been denied by learned Standing Counsel, this issue has now been settled between the applicant and the Customs Authorities as the customs duty has now been paid by the applicant. (in fact per learned counsel there is an over payment and some refund is due to the applicant). Insofar as the dues of the various banks are concerned, it is the applicant's case that he wants to settle these as well in fact he has entered into an agreement with the Government of Pakistan for such purpose and offered the various properties owned by him and his family for sale. In fact according to the documentation placed on the record, the liabilities of A MCB, PICIC, HBL and NBP have been settled by the Applicant and part payment has been made to the Saudi-Pak Commercial Bank. However, insofar as ABL is concerned no settlement could be reached between the parties. It would also be seen that ABL had filed a civil suit in this Court bearing No.625 of 1997 against the applicant's companies for recovery of the loans advanced to them which has been decreed.

12. In view of the foregoing facts and circumstances, in our opinion the lodging of the present F.I.R.

Against the applicant is no more than an exercise for coercive recovery of its dues by the Bank which are admittedly of a civil nature. Consequently, on the basis of the admitted facts to allow the proceedings to continue before the learned trial Court would indeed be an abuse of the process of such Court. Hence, the proceedings under the F.I.R. In question are quashed.

13. The above are the reasons for the short order passed by us earlier whereby this criminal revision application was allowed.