STATE BANK OF PAKISTAN Versus CAPITAL TRADING COMPANY
The charge against the accused is that they being the partners of Messrs Capital Trading Company, with its office at P.C.C. House, BC‑12, Block No.5, Clifton, Karachi, when called upon by the State Bank of Pakistan under section 43‑A of the Banking Companies Ordinance, 1962, through directives dated 16‑5‑1987, 10‑8‑1987 and 18‑11‑1987 to furnish such information, documents or record respecting their business which might be in their knowledge, custody or possession, to find out if they were doing banking business in contravention of section 27(1) of the Banking Companies
Ordinance, 1962, have failed to do so, and thereby committed an offence punishable under section 83(1‑C) of the Banking Companies Ordinance, 1962.
2. Messrs Capital Trading Company, the accused No.1 is a partnership firm with accused S. Jamal Shahid, MA. Waseem (both absconding), MA. Rauf Tahir and Muhammad Khalil as its partners. The State Bank of Pakistan in exercise of powers under section 43‑A of the Banking Companies Ordinance, 1962, issued directive dated 16‑5‑1987 to accused No.l, in order to inquire into the business of accused No.l, for the purpose of determining whether the said accused firm was doing any banking business in contravention of section 27(1) of the aforesaid Ordinance. The accused No.l replied thereto vide its letter, dated 17‑5‑1987, which was not found satisfactory and consequently two more directives dated 10‑8‑1987 and 18‑i1‑1987 were issued to accused No.1/firm. Since there was a contravention of the provisions contained in section 43‑A of the Banking Companies Ordinance, 1962, a complaint for the said offence was filed before this Court by Senior Deputy Director, who is empowered by a general notification to launch prosecution in such cases, which was brought on record on 18‑2‑1988. Accused S. Jamal Shahid and MA. Waseem are absconding and consequently on 18‑12‑1988 an order under section 512, Cr.P.C. was passed and a proclamation under section 87. Cr.P.C. was issued against them.
3. Charge under section 43‑A, read with section 83(1‑C) of the Banking Companies Ordinance, 1962, was framed against accused MA. Rauf Tahir and Muhammad Khalil, to which they pleaded not guilty and claimed a trial.
4. At the trial the prosecution has examined Mian Abdul Qadir, Senior Deputy Director (P.W.1) and then closed the side. '
5. The accused met the charge with a denial. They examined themselves on oath, but adduced no other evidence.
6. Points for my determination are as under:‑‑
(i) Whether accused MA. Rauf Tahir and Muhammad Khalil are partners of Messrs Capital Trading Company, Karachi, a partnership firm?
(ii) Whether the above accused have violated the directives issued under section 43‑A of the Banking Companies Ordinance, 1962?
(iii) What offence, if any, is committed by the accused or any one of them?
7. My findings on the above points are as follows:‑‑‑
?
(i) Affirmative.
(ii) Not proved.
(iii) No offence.
REASONS
8. POINT NO.1 .
?
Mian Abdul Qadir, Senior Deputy Director, State Bank of Pakistan (P.W.1) has produced a copy of partnership deed, dated 4‑5‑1987 (Exh. 9), which makes it clear that both accused MA. Rauf Tahir and Muhammad Khalil are partners of Messrs Capital Trading Company, the accused No.l. Both the accused have admitted this fact in their statements recorded under section 342,, Cr.P.C. and under section 340(2), Cr.P.C. There is, therefore, no difficulty in answering this point in affirmative.
9. POINTS NOS.2 AND 3 .
Both these points are inter connected, hence for the sake of convenience they are being discussed together.
10. Mian Abdul Qadir, Senior Deputy Director (P.W.1) has produced the directive, dated 16‑5‑1987 (Exh.ll) issued under section 43‑A of the Banking Companies Ordinance, 1962. This directive was issued on the 12th day of the execution of partnership deed (Exh.9) and was replied vide (Exh.12) in the? following words: ‑‑
"We submit as under: ‑‑
(1) That we are not transacting any banking business, neither have the plans to do it.
(2) The firm is newly established and has not opened a banking account with any bank till today.
(3) As the firm has not transacted any business and has not taken money from any person/persons, so the question of maintaining cash books/ledgers/investors book does not arise.
(4) We have advertised for the prospective financers to invest money in our business on profit/loss sharing basis enabling us to expand our business.
Your representatives are welcome to visit our office as and when they desire."
11. The contents of the above letter are self‑explanatory. The directive (Exh.II) was issued soon after the formation of the firm and consequently the accused were unable to produce the relevant record/cash books etc. They also invited the representatives of the complainant to inspect the office, as and when desired. None of the authorised officers was examined by the prosecution to prove that the accused avoided/refused to produce the relevant record. Admittedly Mian Abdul Qadir, Senior Deputy Director (P.W.1) had not visited the office of accused at any time. In fact the evidence of Mian Abdul Qadir (P.W.1) shows that Messrs S.M. Khursheed and Mohiuddin Khan had visited: the office of accused. Both of them were, however, not put in the witness‑box so as to satisfy this Court that it was a case of deliberate defiance of the directives issued by the State Bank of Pakistan by the accused. In the absence of any direct evidence, which was admittedly available with the prosecution no reliance can be placed upon the evidence of Mian Abdul Qadir, Senior Deputy Director (P.W.1) in the present circumstances.
12. In criminal cases there is only one standard of proof for all charges, that the prosecution must prove the case against the accused beyond all reasonable doubt. A conviction must stand or fall on the strength of the prosecution and not on the weakness of the defence.
13. Having regard to the above factual position, I am clear in my mind that the prosecution has failed to prove the case against the accused beyond any reasonable doubt. The benefit of doubt is extended to both the accused and they are acquitted accordingly. The accused are discharged from their P.R. bonds.
H.B.T./S‑783/K ?????????????????????????????????????????????????????????????????????????????????????? Accused acquitted.