ABDUL RAZZAK Versus THE STATE

ORDER

This order shall dispose of Criminal Miscellaneous Nos.97 and 98 of 2002 whereby applicants Abdul Razzak and Hussain Musa Lawai have sought quashment of the criminal proceedings arising out of F.I.Rs No.5 of 1997 and 6 of 1997 registered at Police Station FIA, CBC, Karachi, pending as Cases Nos. 12 of 1997 and 14 of 1997 in the Special Court (Offences in Banks) Sindh, Karachi.

2. The F.I.R. No.5 of 1997 was recorded on 22‑1‑1997 incorporating a letter from Mr. Maqsood Ahmed, Senior Vice President, Muslim Commercial Bank, the contents whereof run as under:‑‑

"Received a letter from FIA, HQR, Islamabad vide No. F.2 (156)/96/ECW/478, dated 18‑1‑1997, alongwith a complaint of Mr. Maqsood Ahmed, SVP, MCB, Karachi, for registration of a case with the permission of the Competent Authority. The complaint reads as under:‑‑

The Director,

Economic Crime Wing

F. I. A., Headquarters,

Islamabad.

Dear Sir,

Complainant against unauthorized remittance of U.S. $ 5‑Million to Messrs A.R.Y. International Exchange Co., Dubai by debiting to MCB Banking Adjustment account with EPZ Karachi Branch.

It is reported that on 23rd February, 1995, a sum of U.S. $ 5‑Million, on verbal instructions of Mr. Hussain Lawai, the then President, was credited in the account of Messrs A. R. Y. International Exchange, Dubai, bearing Account number 726109 with American Express Bank, New York, to the debit of MCB Banking Adjustment Account with EPZ, Karachi.

On the record there is no request from the party for such facility, nor any amount appears to have been paid by A.R.Y. International Exchange, Dubai for routing transaction through MCB.

Besides repeated requests made by the undersigned and by Mr. A. Razak H., Br. Executive Vice‑President, Overseeing the Division, formal approval for above transaction was not accorded by the then President.

The liability outstanding in the MCB Account has been adjusted out of the profit of the Bank as per instructions of Mr. Hussain Lawai.

The above transaction does not appear to be genuine falling under the provisions of the Banking Companies Ordinance.

The above transaction also violates the SBP Prudential Rules and Regulations.

Messrs A. R. Y. International Exchange, Dubai, on the face appears to be benefited with the sum of U.S. $ 5 Million by causing a wrongful loss to Bank and wrongful gain to Messrs A. R. Y. International Exchange, Dubai.

The Federal Government still owes 25 % equity in the capital of the Bank.

Necessary legal action may kindly be taken for recovery of the amount so that the loss caused to the Bank be made good.

Yours sincerely,

(Sd.)

(Maqsood Ahmed),

Senior Vice‑President.

The contents of the above complaint prima facie constitute offences punishable under section 409/34, P.P.C. read with section 5(2) of Act II of PCA, 1947. Hence a case is accordingly registered with the permission of the Competent Authority and investigation taken up by the undersigned.

(Sd.)

(Khaliquzzaman Khan),

Assistant Director,

F.I.A, CBC, Karachi."

3. The F.I.R. No.6 of 1997 was lodged on 30‑1‑1997 by another officer of F.I.A. incorporating therein a joint letter of same aforementioned Senior Vice‑President, Muslim Commercial Bank namely Maqsood Ahmed and Senior Executive Vice‑President, Muslim Commercial Bank namely Abdul Razzak Haji Adam wherein the gist of the allegations was recorded in concluding para. of the letter which runs as under:‑‑

"12. In view of the facts narrated above it is reiterated that there was no room, scope or justification for the MCB to execute sub‑underwriting agreements to the tune of U.S. $ 500 million (for roughly 3.3 million vouchers) since the underwriting commitment of MCB was only to the extent of 121,100 vouchers. Consequently, the so‑called commission of US $ 5 million paid on account of the alleged sub under writing was a dishonest and fraudulent transaction in which Mr. Hussain Lawai, was directly and personally involved. It is submitted that Mr. Hussain Lawai, who as President of the Bank, was fully entrusted with and had full dominion over the monies of the Bank, has dishonestly misappropriated and disposed of the said money in an illegal, fraudulent and dishonest manner in collusion and conspiracy with A.R.Y. International Exchange, Dubai, to his own personal advantage and for the gratification of his associates. He has wilfully, deliberately, intentionally, dishonestly and fraudulently committed breach of trust and is thus guilty under the law.

It is requested that a case may be registered and action taken against Mr. Hussain Lawai and his associates/accomplices so that they are punished according to law for the offences committed and the mis appropriated amount recovered."

4. After investigation interim challans were submitted in the trial Court on 3‑2‑1997 and 17‑2‑1997 respectively, but finally the case was challaned on 29‑6‑2001. The applicants were shown as absconding accused persons in Column 2 of the challan of the first mentioned case, while the applicants and one Muhammad Rafiq were shown as absconders in Column 2 of the challan arising out of F.I.R. No.6 of 1997. It is an admitted position that the applicants have not yet surrendered before the trial Court although on 26‑3‑1998 time was allowed by the trial Court to their advocate Ms. Ismat Mehdi on her submission that she intended to ask the accused persons to appear before the Court.

5. We have heard Mr. Muhammad Ashraf Kazi, learned counsel for applicants, Mr. Khalid Anwar, learned counsel for respondent Muslim Commercial Bank and Mr. Khurshid Hashmi, learned D.A.‑G. for respondents Nos. l to 3 in both the cases.

6. Main contention, raised in support of the quashment application by Mr. M.A. Kazi, was that the applicants have already been tried in criminal cases at Dubai, therefore, within the meaning of section 403, Cr.P.C. they cannot be put to trial once again. Secondly, the applicants have approached the Lahore High Court in C.P. No.17166 of 1997 wherein it was ordered on 31‑7‑1997 that the applicants shall not be harassed or arrested. He further referred to Criminal Original No.276‑D‑98 filed in the said Court wherein assurance was given by learned D.A.‑G. for Pakistan on behalf of the State that respondents would act in accordance with law and in obedience of the order passed by the Court till such time it is vacated or the main case itself is decided. He also contended that civil suits are pending on the same subject‑matter, therefore, the criminal cases should not proceed as laid down in Muhammad Akbar v. State PLD 1968 SC 281 and Abdul Shakoor Kaloodi v. The State (SBLR 2002 Sindh 1263).

7. Mr. Khalid Anwar, learned counsel for respondent No.4, Muslim Commercial Bank, submitted that the essential ingredients of section 403, Cr.P.C. for the purpose of barring the trial of the instant cases by the Special Court are wholly lacking and so also no benefit can be claimed by the applicants under article 13(a) of the Constitution as the orders relied upon by the applicants have not been passed by the competent Court in Pakistan. Notwithstanding this drawback he pointed out that the order in Case No.6280 of 1997 passed in Dubai, against which appeal up to the level of Supreme Court has been dismissed, has been passed by the Prosecutor of Dubai to the effect that there was no ground for filing penal case against the accused, therefore, by no stretch of imagination it could be conceived that the applicants faced criminal trial at Dubai. He further submitted that in the instant cases the challans submitted in the trial Court were never questioned by the applicants in the appropriate Courts and on the contrary, petitions were filed on their behalf in the Lahore High Court although the F.I.Rs. were registered in Karachi, the incident took place n Karachi and even the money in question vas transferred from Karachi. He urged that he applicants were fugitive from justice, therefore, the Courts would not act in their aid as held in Chan Shah v. Crown PLD 1956 FC 43. Learned D.A.‑G. adopted the same arguments.

8. We have carefully considered all these contentions. The proceedings have been mainly assailed on the basis of provisions of section 403, Cr.P.C. In substance subsection (1) of section 403, Cr.P.C. provides protection against 'double jeopardy' which is based on legal maxim ' autre fois acquit'. The legal maxim ' nemo debet lis vexari pro uno et radem (it is a rule of law that no one shall be twice vexed for one and the same cause) is equally applicable in such cases. The bar contained under section 403, Cr.P.C. for re‑trial of a person will be applicable only when, inter alia, the following predominant conditions are satisfied i.e. (1) the accused has been tried by a Court of competent jurisdiction, (2) he has been convicted or acquitted for such offence, and (3) that the conviction or acquittal is still in force. The order in question referred to by learned counsel for applicants has been passed in Dubai by the Prosecutor Isa Shariff. It is an observation by the Prosecutor that no penal action be initiated owing to lack of evidence and incorrectness. Indeed, this is no prosecution in a Court on a criminal charge in the eyes of law and it cannot be equated with criminal trial. Even if this order has been upheld by the Supreme Court in Dubai, its effect is to be calculated within the perspective of the initial order itself. On a plain understanding it may be concluded that the net outcome of the said order is that the applicants have neither been indicted nor tried for this offence. The question of bar to the trial in the instant case founded on the aforesaid order, therefore, does not arise.

9. Nevertheless, in particular, for the purpose of applicability of the principle of double jeopardy the first ingredient under subsection (1) of section 403, Cr.P.C. is that the trial/prosecution should have been conducted by the Court of competent jurisdiction. Section 6 of Criminal Procedure Code enumerates the Courts of competent jurisdiction, and the term "Court of competent jurisdiction" employed in section 403(1), Cr.P.C. would connote any of the Courts described in section 6, Cr.P.C. and may include even a Court created by or under the Constitution. Admittedly, the applicants have not been prosecuted by any of C these Courts. The instant Special Court trying the case has, for the first time, taking cognizance of the offence, the plea of autre fois acquit founded on the observations of Prosecutor of Dubai, as already discussed, is absolutely inapplicable in the instant case.

10. The provision enjoined in Article 13(a) of the Constitution also speaks of prosecution and punishment for an offence p and only then it creates a bar that no person shall be prosecuted or punished for the same offence more than once. These ingredients are totally missing in this case. The contention on the basis of double jeopardy is, as such, patently misconceived and therefore, repelled.

11. It was also contended that identity of the applicants in the challan is not fully established. This contention, on the face of it, has no force as the applicants themselves have relied on the proceedings at Dubai wherein the same description of their identity is given and those matters also relate to the same subject‑matter. Nevertheless, it would be a trifling irregularity and can only be clarified at the trial.

12. The orders passed by the Lahore High Court would also not come in the way of trial of the applicants as the Lahore High Court had, at the best, protected the applicants from harassment and arrest. Trial can, as such, proceed without any hindrance as and when the applicants appear before the trial Court. Admittedly, they are keeping, away and even their counsel who had taken, time to ask them to appear before the Court has not been able to carry out the undertaking. As rightly submitted by Mr. Khalid Anwar the Courts would not act in aid of a fugitive from justice. Even the Advocates are supposed to seek appearance of a fugitive in Court as held in Chan Shah's case PLD 1956 FC 43. There is no other opinion about the legal position that fugitive from justice loses some of his normal privileges/rights otherwise available to him. Rule laid down in Awal Gul v. Zawar Khan and others PLD 1985 SC 402 followed in Sher Ali v. State 1998 SCMR 190 can be pressed into service.

13. In the alternative it was argued by Mr: M.A. Kazi that suits arising out of the same subject‑matter are pending adjudication, therefore, the instant criminal proceedings are not maintainable. Mr. Khalid Anwar, learned counsel for MCB contended that this plea has not at all been taken in the application tiled in this Court for quashment of the proceedings arising out of the aforesaid F.I.Rs. Mr. Kazi conceded that such plea has not been raised in specific terms, but generally it has been stated in para.3 of this application that for the last over 7 years the applicants and the Muslim Commercial Bank are interlocked in litigation in criminal and civil jurisdiction both in Pakistan and Dubai. On being pointed out by the Court, he further conceded that copies of the plaints/pleadings in the civil matters pending in Pakistan have not been filed; he referred, albeit, to the civil matter decided in Dubai. In any case, it may be observed that the plea advanced on the basis of civil proceedings can, at the best, be stressed for the purpose of staying the criminal proceedings as held in Muhammad Akbar v. State PLD 1968 SC 281. It is a question apart that contrary view is also appearing in Syed Muhammad Ahmed v. State 1972 SCMR 85 wherein the order passed by High Court declining stay of criminal proceedings was upheld by the Hon'ble Supreme Court. No doubt, Miscellaneous Application has been made for staying the proceedings pending in the trial Court until decision of the instant application, but since by this order we are deciding the main application for quashment of the proceedings the question of provisional stay also loses its significance. Similarly, we are not inclined to entertain the belated plea of staying the main criminal proceedings pending in the trial Court, inter alia, for the reason based on the undisputed fact that the applicants are still fugitives. Even the order passed by the Prosecutor of Dubai mentions them as fugitive Pakistanis.

14. For the foregoing reasons we are convinced that there is no material available i on record to suggest that if reliance is placed on the same the trial would be an exercise in futility and no charge could be sustained. The provision of Article 13(a) of the Constitution and section 403, Cr.P.C. also do not afford protection to the applicants on the plea of double jeopardy. The applications for quashment are, therefore, without substance and are accordingly dismissed.

15. Above are the reasons for the short order pronounced on 5th November, 2002 in Court.

N. H. Q./A‑411/K Petitions dismissed.