IMRAN MEHMOOD Versus State

SHAHID ANWAR BAJWA, J.--- F.I.R. No.653 of 2009 was recorded at Police Station Boat Basin, Clifton, Karachi on 2-12-2009 at 4-00 p.m. Complainant was one Ahmed Jameel Ansari. He wrote a letter to the S.H.O. Police Station Boat Basin, Clifton Karachi for registration' of F.I.R. against present two applicants. He stated that he was Chairman of a Company by the name "Messrs Callmate Teltps Telecom Ltd. (hereinafter referred to as "CTTL"). Applicant No.1, Imran Mehmood (hereinafter referred to as "Imran") was employed as Chief Financial Officer of CTTL and in that capacity he was entrusted with responsibility of looking after financial activities of the company including management of share-holdings and handling of cash. It was stated by the complainant that Imran was also entrusted with share of CTTL. Imran with criminal and fraudulent intention unauthorizedly transferred 11.5 million shares of CTTL belonging to the complainant to his brother, Irfan Mehmood (hereinafter referred to as "Irfan " ) who subsequently sold those shares in , open market. These shares were pledged with Messrs Al-Haqqani Security (hereinafter referred to as Al-Haqqani) for security for loan for a sum of Rs.150 million. According to Messrs Al Haqqani shares were transferred on instructions of Imran and part of these shares was transferred in the name of Irfan. It was further stated that detailed scrutiny and audit of the accounts further revealed that a number of financial irregularities had been committed by Imran. Consequently, F.I.R. for an offence under sections 420, 468, 469, 471, 408/34, P.P.C. was registered. After this .F.I.R. was registered Constitutional Petition No.337 of 2010 was filed for quashment of F.I.R. In this petition notice was issued on 16-2-2010. It was urged in the petition that present applicants had filed a suit against Al-Haqqani and Investment Corporation of Pakistan and another suit against Irfan. However, on 24-8-2010 report under section 173, Cr.P.C. recommending for disposal of F.I.R. under "A" Class was filed and in view of such report the petition was sought to be withdrawn and consequently vide order dated 11-11-2010 it was dismissed as withdrawn.

2. In its report under section 173, Cr.P.C. police stated that investigation did not unearth any proof against accused persons and Imran had left employment of CTTL almost three years earlier. It was also noted that civil suits were pending between the parties. Learned Judicial Magistrate to whom report was made passed an order on 1-1-2011. He disagreed with police report and ordered that Challan be submitted against all the accused persons. The operative part of order passed by the Judicial Magistrate on 1-1-2011 reads as under:

"It is pertinent to mention here that there is documentary evidence against accused persons with commission of the crime but 1.0. of the case has deliberately tried to spoil the case of prosecution without putting reliance upon evidence of prosecution witnesses and it is not the duty of police/I.O. to evaluate and assess the quality of the evidence and give the pre-trial verdict but the court of law is competent to assess and evaluate the evidence. Let the falsehood or otherwise of the prosecution case be determined by the court at trial.

In view of the above facts, circumstances I have come to the conclusion that request of 1.0. for disposal of case as 'A' class is not reasonable. Consequently, I do not agree with the report submitted by 1.0. Let the police papers be returned herewith to the SIO of P.S. Boat Basin, with directions to submit Challan against all the accused named in F.I.R. before this court on prescribed Performa within a week after receipt of copy of order and police papers."

3. This criminal miscellaneous application under section 561-A, Cr.P.C. has been filed to challenge and impugn order passed by the Judicial Magistrate.

4. Mr. M. Ilyas Khan learned counsel for applicants made the following submissions:

(i) Learned counsel read from Paras 3 and 5 of the written submission made by Imran before the Judicial Magistrate, which read as under:-

3. That in the month of November, 2006, the complainant has pledged the 11.5 million shares with Messrs Al-Hoqani Securities vide Transaction Order No.10111527 dated 6-11-2006 and have obtained a loan facility for amount of Rs.150 Million through a Cheque bearing No.17652999 drawn from PICIC Commercial Bank Limited Karachi Stock Exchange Branch, Karachi on 7-112006.

4. That the Jamil Ansar complainant transferred 11.5 Million shares of CTTL from his investor account in the account of Messrs AL-HAQANI Securities and after obtaining the loan facility 150 Million had not paid the principle amount as well as markup for which Messrs AL-HAQANI wrote a letter on 17-4-2007 to the Complainant Ahmed Jamil Ansari, for clearance of all markup plus opportunity cost immediately totalling amount Rs. 163, 656, 257 and after receiving the said letter Jamil Ansari complainant has replied through his counsel Mr. Kamal Azfar on 16-5-2007, wherein he has made counter claim in respect of 11.5 millions of share of CTTL belonging to the respondent No.6, the accused has also filed a . Civil Suit No.920 of 2007 against Messrs AL-HAQANI Securities and Investment Corporation (Pvt.) Ltd. Before the Hon 'ble High Court of Sindh at Karachi, which is present for proper adjudication The accused has not mentioned evert a single word against the present petitioner and his brother namely Irfan Mehmood that they have played any active role with the connivance of Messrs AL-HOQANI Securities Investment Corporation Pvt. Ltd.

5. That it is a matter of fact that incident has taken place in November, 2006 to December, 2009, which was very much in the knowledge of the complainant and petitioner was in service at that time but the complainant has failed to take any legal action against the accused since last three years (November, 2006 to November, 2009). It is further submitted that at the time of lodging the present F.I.R. he has not explained the reason of delay not taking action against the petitioner named above. It is therefore obvious that the Complainant has malafidely and with ulterior motives lodged the present F.I.R. against the accused. With the sole purpose of harassment to the accused and his family members"

(ii) Learned counsel also referred to a letter written by Advocate for applicants to Al-Haqqani on May 16, 2007 and submitted that there is no mention whatsoever in this letter sale is alleged by Imran or by Irfan. In this letter Advocate stated as under:-

On the contrary Our Client has a counter-claim against you in respect of the 11.5 Million shares of Messrs Callmate Telips Telecom Limited (CTCL), belonging to him and entrusted to you as security A' copy of the receipt dated 6-11-2006 Transaction Order No.1011527 of Central Depository Company Limited of Pakistan (CDC) is annexed hereto for your convenient reference.

As such the allegation in your letter of 17 April, 2007 that the amount of Rs.163, 656, 275, claimed by you, was unsecured is not only false and incorrect but a fraudulent misrepresentation. If you have sold the shares of Our Client without his knowledge or consent, then this act of yours would constitute criminal breach of trust reposed in you."

(iii) Learned counsel also referred to plaint of Suit No.920 of 2007 filed by present complainant against Al-Haqqani and submitted that no allegation whatsoever has been made or no loss or fraud whatsoever has been alleged to have caused or committed by the present applicants in this application.

(iv) Learned counsel submitted that sale is alleged to have taken place in 2006. Learned counsel also referred to direct complaint filed by the Securities and Exchange Commission of Pakistan (hereinafter referred to as "SECP") in the Court of District and Sessions Judge, Karachi South against 11 persons including the present applicants as well as the complainant and submitted that case made out by SECP in direct complaint is materially different from the case made out in F.I.R. by the complainant. Learned counsel submitted that both the F.I.Rs. filed by the complainant and direct complaint by SECP relates to the same incident.

(v) Learned counsel referred to various documents to demonstrate that the complainant had received consideration and loan from PICIC Bank. He submitted that 11.5 million shares of CTTL were pledged by complainant and Al-Haqqani, therefore between November 21 and November 30 they were transferred to Orix Investment Bank in the account of Mohammad Ajmal Ansari and said Ajmal Ansari received amount of Rs.160 million from Orix Investment Bank.

(vi) Learned counsel submitted that written statement submitted by the applicant before the Judicial Magistrate had not been taken into consideration by the Judicial Magistrate and, therefore, order passed by the Judicial Magistrate is a mechanical order. He relied upon Muhammad Siddique v. S.H.O. Sadar, Sialkot and 4 others (PLD 1994 Lahore 407), Mushtaq Raj Magistrate Ist Class and others (1994 PCr.LJ. 497) and Bahadur and another v. The State and another (PLD 1985 SC 62). Learned counsel submitted that no reason has been stated by the Magistrate for reaching the conclusion that learned Magistrate has reached.

(vii) Learned counsel next submitted that Judicial Magistrate could not have given direction for submitting challan and in this regard he relied.upon Bahadur and another v. The State and another (PLD 1985 SC 62)

(viii) Regarding power of the High Court under section 561-A, Cr.P.C. learned counsel relied upon Dr. Ghulam Mustafa Solangi and 5 others v. The State (2005 PCr.LJ 1638).

(ix) Lastly, learned counsel submitted that in the presence of civil litigation criminal case could not have proceeded. Learned counsel relied upon A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353).

5. Dr. Muhammad Farogh Naseem learned counsel for the complainant made following submissions:

(i) Learned counsel submitted that revision application is pre-mature and he relied upon Akbar Ali v. Additional Sessions Judge, Faisalabad and 7 others (PLD 2007 Lahore 534). His submission was that once cognizance has been taken trial should be followed.

(ii) Learned counsel submitted that whether in view of civil litigation criminal case is to be stayed or is to be decided by the Criminal Court and cannot be a ground taken for the first time in the High Court. He relied upon Malik Khuda Bakhsh v. The State (1995 SCMR 1621), Haji Muhammad Ashiq v. The State and another (2006 MLD 491), Tariq Mehmood and others v. The State and others (2004 MLD 1113), Muhammad Ibrar v. The S.H.O. and others (1999 MLD 2532) and Mrs. Shamsunnisa Bakhtiar and another v. The State and others (1989 PCr.LJ 2451)

(iii) Learned counsel submitted that a Magistrate who takes cognizance has powers to order that challan be filed. He relied upon Abdul Khaliq and another v. Civil Judge and another (2010 YLR 408) and Shamsuddin and 2 others v. The State and 3 others (2010 PCr.LJ 115).

(iv) Regarding contention by learned counsel that what is stated in the F.I.R. was not stated when civil ' suit was filed or when a legal notice to Al-Haqqani was given by Advocate for CTTL.

(v) Learned counsel submitted that real story came to the knowledge of complainant only when Imran resigned from position of Chief Executive Officer and this story came when in response written statement was filed by Al-Haqqani. Learned counsel referred to order dated 17-1-2011 by which order complainant was allowed to be impleaded as party because it was held that the complainant had acquired vested right in the matter.

(vi) Learned counsel submitted that on 25-11-2008 letter was written to the Ministry of Interior to arrange from Interpol deportation of Imran from Dubai to Pakistan. It was only then that Imran was brought to Pakistan.

(vii) He submitted that in direct complaint filed by the SECP an application under section 265-K, Cr.P.C. was allowed by the trial Court and complainant has been acquitted.

(viii) Learned counsel submitted that SECP's case in respect of inside trading and manipulation and even if that resulted in conviction of anyone, question of fraud committed by the applicants against complainant and criminal breach of trust would not be decided.

(ix) Regarding maintenance of present criminal miscellaneous application learned counsel submitted that section 561-A, Cr.P.C. could not be invoked for quashing the F.I.R. He relied upon Ahmed Saeed v. The State and another (1996' SCMR 186). Learned counsel however conceded that this can be done in exercise of constitutional jurisdiction.

(x) Regarding power of the - Court dealing with report under section 173, Cr.P.C. to order that challan be submitted learned counsel relied upon Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585).

(xi) Learned counsel read from counter-affidavit filed in C.P.No.337/2010 where it has been stated , as under:-

"The petitioner and his brother Irfan Mehmood defrauded the respondent No. 6 by embezzling funds from CTTL and in particular unauthorizedly and malafidely transferring 11.5 million shares of respondent No.6 in CTTL pledged with Messrs Al-Haqani Securities. Apart from the above the petitioner also fraudulently enticed the respondent No. 6 into selling .3.52 million shares of CTTL @ Rs.54.75 per share (i.e. Rs.192.72 million) to his real brother Irfan Mehmood. Whereafter both said Irfan Mehmood and the petitioner fraudulently did not pay the respondent No.6, hence the F.I.R. was lodged both against them. Till date payment of the latter shares has not been made by the petitioner or his brother Irfan Mehmood. The petitioner and his brother have committed fraud against the respondent No.6, for which it is the respondent's legitimate right to file a criminal complaint/F. I. R. "

(xii) While concluding learned counsel supported the order passed by the Judicial Magistrate.

6. Learned counsel Assistant Prosecutor-General adopted arguments advanced by learned counsel for complainant.

7. Exercising his right . of reply learned counsel for applicants submitted that as far as order passed by the learned Additional Sessions Judge on application under section 265-A, Cr.P.C. is concerned, that order is not binding in this Court and secondly revision is pending against that order in this Court. He submitted that application has been filed just to delay the proceedings. He submitted that it was available to complainant tO file direct complaint.

8. I have considered submissions made by the learned counsel for the parties and have also gone through the record as well as the case-law cited at bar.

9. It was contended by Mr. Ilyas Khan, learned counsel for the applicants that civil litigation is pending between the parties and in the presence of civil litigation criminal case cannot be proceeded. He relied upon A. Habib Ahmed's case (supra). In the reported case cognizance was taken by the Presiding Officer, Special Court for Sindh (Banks), Karachi. Latif Ahmed was Director of company which maintained two accounts with the bank. For the purpose of availing overdraft facility he pledged shares of the company with the bank. On 28-1-1987 he received two letters from the bank asking him to adjust outstanding dues failing , which bank would be constrained to start selling the shares. Petitioner requested the bank for time and also authorized to the bank to collect dividend on his shares. 30 per cent dividend was declared by the company and bank was surprised to know that the shares had been already sold by the petitioner secretly to a stock exchange broker. Consequently, complaint was filed. Constitutional Petition was filed and it was allowed by the High Court. Honourable Supreme Court concurred with High Court that the Banking Court had no jurisdiction. Supreme Court ordered as under:

"There is yet another point to be dealt with. During the hearing of these appeals, it came to light, that the civil suit dealing with the same subject-matter is still pending. We asked the learned counsel for the appellants to address arguments on the point; whether, in accordance with the ordinary rule laid down by this Court that in such like situation the proceedings in the Criminal Court would remain stayed till the decision of the Civil Court, should not be followed he had not much to say to oppose this procedure. See the of Abdul Haleem v. The State (1982 SCMR 988) where this rule was followed

In the light of the foregoing discussion we allow these appeals, set aside the impugned judgments and direct that the accused/respondents shall be tried by the Special Courts (Banks) for Offences under the Banks (Special Courts) Ordinance IX of 1984. It is further directed that the proceedings before the said Court shall remain stayed till the decision of the civil matter, the information regarding which decision, would be laid before the Criminal Court by the parties concerned including the appellants."

10. On the other hand in Malik Khuda Bakhsh's case (supra) it was contended that controversy both in civil and criminal matters rested upon alleged receipt and the matter regarding cancellation of receipt was pending on civil side, therefore, it was mandatory and in the interest of justice that till decision in civil matter criminal proceedings be stayed or in alternative proceedings be completed but the judgment be not announced. Supreme Court relied upon Mst..Naseer Begum's v. Sain and 7 others (in 1972 SCMR 584) and observed that judgment of civil Court is not admissible in criminal proceedings to establish truth of the facts upon which it is rendered and in the criminal trial it is for the Court to determine question of guilt of the accused and , it must do so upon evidence before it. In Haji Muhammad Ashiq's case (supra) it was observed that civil and criminal proceedings are governed by different laws and, therefore, there was no provision in law which mandated a criminal Court to stay criminal proceedings till decision of civil suit relating to the same subject-matter. Court in this regard relied upon Muhammad Akbar v. The State (PLD 1968 SC 281) In Tariq Mehmood case (supra) Muhammad Akbar's case was relied upon for the same proposition.

11. In the present case all that the Magistrate has done is that he took cognizance and sent the matter to the trial Court for proceeding with trial. If the applicant feels that trial should be stayed he should have in the first place approached the trial Court to stay the proceedings. He has not done. What has been challenged in this application is very act of taking cognizance by the Judicial Magistrate. Therefore, it- is too pre-mature for the applicants to argue that since civil suit is pending the criminal trial be 'stayed and it is not germane to the question whether cognizance has been rightly taken or not.

12. Learned counsel submitted that Judicial Magistrate has passed a mechanical order and has not applied his mind to the matter before him. He relied upon Bahadur's case (supra). In this landmark judgment the honourable Supreme Court has held that Magistrate while scrutinizing report under section 173, Cr.P.C. does not act as a Court and his order is an administrative order. It was observed as under:--

"Though a Magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all State power, there is no lis before him, there is no duty to hear the parties, therefore is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal Court."

13. In Mushtaq Raj's case (supra) observations are substantially same as made in Bahadur's case. In Muhammad Siddique case (supra) again case of Bahadur (supra) was relied upon and it was observed that Magistrate is required to consider all the material available on record. Learned Magistrate in this matter has made observations reproduced in Para 2 above and he has specifically come to the conclusion, prima facie, there was documentary evidence available against the accused person. Once Magistrate comes to the conclusion and there was documentary evidence it is not domain of the Magistrate to enter into exercise of' evaluating that evidence and then deciding guilt or innocence of the person alleged to have committed offence stated in the F.I.R. One should not loose site fact that the Magistrate is not passing judicial order; he is not evaluating evidence. He has just to see whether, prima facie, there is some material in respect of allegation. What is the evidentially worth of such material is not domain of the Magistrate to decide. Therefore, contention of Mr. Ilyas Khan that Magistrate has merely passed order mechanical manner is not'borne on the record.

14. It was next contended by Mr. Ilyas Khan that Magistrate could not have given direction for submission of challan and. in support of his submission he relied upon Bahadur's case (supra). On the other hand learned counsel for the respondents relied upon Abdul Khaliq's case (supra). In this case police submitted report stating that the offence had not been committed and recommended for disposal of case in "B" class but the Magistrate disagreed and directed that challan be submitted. Learned Single Judge did not interfere with order passed by the Judicial Magistrate. In Shamsuddin's case (supra) report under "C" class was not accepted and the Magistrate ordered that challan be submitted. Another Single Judge of this Court did not interfere with that order of the Magistrate. Reliance on Bahadur's case (supra) by the learned counsel for his contention that Magistrate cannot order that the challan be submitted does not appear to be borne from the case report what the Supreme Court has held in that case is; firstly that the Magistrate does not act as a Court and acts as a persona designata; secondly his order is an administrative order and not a judicial order; and thirdly he is required to act fairly, justly and honestly. If report under section 173, Cr.P.C. is submitted to Magistrate and it is recommended that F.I.R. be disposed of under "B" class or "C" class or even under "A" class and the Magistrate comes to the conclusion that he cannot agree with report of the police and, therefore, decides to take cognizance of the offence what is the next step. Obviously, the next step would be directing that challan be submitted. Therefore by ordering for submitting challan, in my opinion, the Magistrate has not committed any irregularity.

15. Contention of Dr. Farogh Nasim was that in the case filed by the SECP the complainant has been acquitted under section 265-K, Cr.P.C. Mr. Ilyas Khan countered that against that order a revision is pending in this Court. I would, therefore, refrain from making any comments in this regard because that should be for the bench which considers that matter. However, Dr. Farogh Nasim, prima facie, appears to be correct that in the complaint filed by SECP question of fraud allegedly committed (or not committed) by the present applicants against the complainant is not a question to be decided. Therefore, fact that such case is pending does not preclude the complainant from pursuing his F.I.R.

16. Long arguments were submitted by Mr. M. Ilyas Khan as well as Dr. Farogh Nasim on merits of the allegation I do not think in this miscellaneous application merits should be decided because that would be for the trial Court to consider and decide. However, if present applicants feel that there is no probability of their being convicted they would be at liberty to file appropriate application before the trial Court.

17. Subject to above observations, this criminal miscellaneous application is dismissed.

H.B.T./I-3/K Application dismissed.