IN THE HIGH COURT OF SINDH, KARACHI

Criminal Acquittal Appeal No.390 of 2016

Criminal Acquittal Appeal No.60 of 2017

Before:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

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Appellants: The State through Mr. Salman Talibuddin, Additional Attorney General for Pakistan along with Ms. Maria Ahmad, Advocate

Respondents: 1. Muhammad Shoaib Shaikh 2. Muhammad Junaid 3. Muhammad Younus through M/s. Shaukat Hayyat, Shahab Sarki, Hassaan Sabir, Imdad Ali Saheto, advocate

Date of hearing: 26.02.2018

J U D G M N E N T

Naimatullah Phulpoto, J.--- This judgment will dispose of Criminal Acquittal Appeals Nos.390 of 2016 and 60 of 2017, directed against the orders dated 24.08.2016 and 22.11.2016 passed by learned Additional Sessions Judge-V, Karachi South/Tribunal in F.E.R. Case No.29/2015, whereby he acquitted respondents/accused (1) Shoaib Ahmad Shaikh, (2) Muhammad Yonis; and (3) Muhammad Junaid under section 249-A, Cr.PC.

2. Brief facts of the prosecution case are that F.I.R. No.51/2015 of FIA, CBC, Karachi was lodged on 14.10.2015 at 1630 hours by Adil Jan, Deputy Director, Exchange Policy Department, State Bank of Pakistan, it was recorded under sections 5, 8, 22 and 23 of the Foreign Exchange Regulation Act, 1947 read with section 109, PPC. It is stated in the F.I.R. that consequent upon Inquiry No.42/2015 of FIA Commercial Banks Circle, Karachi, it was established that accused Shoaib Ahmed Shaikh had sent remittances out of Pakistan through Hawala to the tune of Rs.170.17 Million in collusion with accused Muhammad Younus, Director of M/s. Chanda Exchange Company and accused Muhammad Junaid, Branch Manager of M/s. Chanda Exchange Company. It is further alleged in the F.I.R. that on 10.04.2014 accused Shoaib Ahmed Shaikh with mala fide intention opened Bank Account No.0541-79881074-03 in the account title Naseem Akhtar Mughal (mother of accused) at M/s. HBL Defence Housing Society Branch, Karachi for the purpose of Hawala transaction. It is further alleged that on the very next date i.e. 11.04.2014, accused Shoaib Ahmed Shaikh had obtained mandate in his name and this Account was used to send remittances to vendors of M/s. Axact (Pvt.) Limited, based in UAE through Hawala. It is further alleged that there were three Vendors of M/s. Axact (Pvt.) Limited Karachi, namely, Zaki Shawi, Wajid and Ismail Dousary, all based in UAE and accused Shoaib Ahmed Shaikh had sent remittance to them through Hawala in collusion of accused Muhammad Younus and Muhammad Junaid. It is further alleged that accused Shoaib Ahmed Shaikh used to issue cheques of said Bank account containing his signatures being mandate holder and on his instructions staff of Finance Department of M/s. Axact (Pvt.) Limited used to handover such cheques to Staff employees of Muhammad Ali of M/s. Dex Courier (vendor of M/s. Axact). Thereafter, staff of Muhammad Ali used to handover such cheques to accused Muhammad Junaid for onward transmission to UAE through Hawala. It is further alleged that accused Muhammad Junaid used to withdraw cash against said cheques and during inquiry 116 cheques pertaining to the said account have been secured, all contained the signatures of accused Shoaib Ahmed Shaikh which establish the modus operandi of accused persons. It is further alleged that accused Shoaib Ahmed Shaikh used to send remittance out of Pakistan illegally through Hawala in collusion with above named two accused persons and such acts on part of the accused persons constitute offences punishable under sections 5, 8, 22 and 23 of the Foreign Exchange Regulation Act, 1947.

3. After usual investigation, challan was submitted against the accused under sections 5, 8, 22 and 23 of the Foreign Exchange Regulation Act, 1947 read with sections 109/34, PPC.

4. Trial court supplied copies of statements of witnesses to the accused as required by law.

5. Respondent/accused Shoaib Ahmed Shiakh moved an application before the trial court under section 249-A, Cr.PC.

6. Trial court after hearing the arguments of learned counsel for the parties, allowed an application under section 249-A, Cr.PC vide order dated 24.08.2016 and acquitted accused Shoaib Ahmed Shaikh before framing of charge. The operative part of said order reads as follows:-

“I have considered the arguments and have minutely perused the material collected during investigation as regards the allegations as against applicant/accused are concerned. In challan, offences under sections 5, 8, 22 and 23 of the Foreign Exchange Regulations Act, 1947 have been mentioned read with section 109, 34, PPC. I would like to reproduce section 5 of the Foreign Exchange Regulations Act, 1947 for ready reference.

“5. Restrictions on payments : (1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub‑section which may be granted conditionally or unconditionally by (the State Bank) no person in or resident in Pakistan shall‑‑

(a) make any payment to or for the credit of any person resident outside Pakistan.

(b) draw, issue or negotiate any bill of exchange or promissory note or acknowledge any debt, so that a right whether actual or contingent to receive a payment is created or transferred in favour of any person resident outside Pakistan ;

(d) place any sum to the credit of any person resident outside Pakistan;

(e) make any payment to or for the credit of any person as consideration for or in association with‑‑

(i) the receipt by any person of a payment or the acquisition by any person of property outside Pakistan ;

(ii) the creation or transfer in favour of any person of a right whether actual or contingent to receive a payment or acquire property outside Pakistan ;

(f) draw,, issue or negotiate any bill of exchange or promissory note, transfer any security or acknowledge any debt so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person as consideration for or in association with any matter referred to in clause (e).

(2) Nothing in sub‑section (1) shall render unlawful‑‑

(a) the making of any payment already authorized, either with foreign exchange obtained from an authorized dealer under Section 4 or with foreign exchange retained by a person in pursuance of an authorization granted by the State Bank ;

(b) the making of any payment with foreign exchange received by way of, salary or payment for services not arising from business in, or anything done while in Pakistan.

(3) Nothing in this section shall restrict the doing by any person of anything within the scope of any authorization or exemption granted under this Act.

(4) For the purposes of this section, "security" also includes coupons or warrants representing dividends or interest and life or endowment insurance policies.”

The above offence is not attracted to the applicant/accused as none of the prosecution witnesses in their statements either under section 161, Cr.PC or under section 164, Cr.PC has deposed that applicant/accused Shoaib Ahmed Shaikh signed the cheques with instructions that the amount of such cheques shall be transferred/remitted to any person resident at Dubai through illegal process by M/s. Chanda Company. Admittedly, alleged cheques were issued “Cash” cheques and the presenters of the cheques have also not stated that they were instructed by applicant/accused Shoaib Ahmed Shaikh to be instrumental in remitting the amount to any person out of Pakistan. It is not even alleged that applicant/accused issued any such instructions to any person presenting the cheques before the Bank containing his signature.

Other offence mentioned in challan is under section 8 of Foreign Exchange Regulations Act, 1947, which reads as under:-

“8. Restrictions on import and export of certain currency and bullion : (1) The Federal Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be continued in the notification, no person shall, except with the general or special permission of the State bank and on payment of the fees, in any, prescribed bring or send into Pakistan any gold or silver or any currency‑notes or bank notes or coin whether Pakistani or foreign.

Explanation : The brining or sending into any part or place in the territories of Pakistan of any such articles as aforesaid, intended to be taken out of the territories of Pakistan without being removed from the ship or conveyance in which it is being carried, shall nonetheless be deemed to be bringing or as the case may be sending, in to the territories of Pakistan of that article for the purposes of this section.

(2) No person shall, except with the general or special permission of the State Bank or the written permission of a person authorized in this behalf by the State Bank take or send out of Pakistan any gold, jewlellery or precious stones, or Pakistan currency notes, bank notes or foreign exchange.

(3) The restrictions imposed by sub‑sections (1) and (2) shall be deemed 'to have been imposed under Section 16 of the Customs Act, 1969 without prejudice to the provisions of Section 23 of this Act, and all the provisions of that Act shall have effect accordingly.”

This section is not attracted for the reason that not a single witness has stated in his statement under section 161 or under section 164, Cr.PC that applicant/accused either sent any foreign exchange or Pakistani currency out of Pakistan or even there is no allegation that applicant/accused instructed for so doing. The allegations are leveled by the prosecution as against the applicant/accused only on the ground that the cheques contained signature of applicant/accused despite of the fact that the presenter/holder of such cheques were different persons who too have not stated as to whether such cheques were presented on the instructions of applicant/accused. There is no allegation even or any material to indicate that amounts obtained from such cheques were sent to Dubai through Hawala under the instructions of accused but there is only allegation that he signed such cheques, which does not ipso facto connect him with the above offence as alleged.

Sections 22 and 23 of the Foreign Exchange Regulations Act, 1947 read as under:-

“22. False Statements : No person shall, when complying with any order or direction under Section 19 or when making any application or declaration to any authority or person for any purpose under this Act, give any information or make any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular.

23. Penalty and Procedure: (1) Whoever contravenes, attempts to contravene or abets the contravention of any provisions of this Act or of any rule, direction or order made thereunder, other than the provisions of subsections (2), (3) and (5) of Section 3, sub‑section (3) of Section 4, Section 10, sub‑section (1) of Section 12 and sub‑section (3) of Section 20 or any rule, direction or order made thereunder, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be tried by the Tribunal constituted by Section 23‑A and shall be punishable with imprisonment for a term which may extend to two years or with fine or with both, and any such Tribunal trying any such contravention may, if it thinks fit, and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confiscated.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, any offence punishable under this section shall be cognizable and non‑bailable for such period as the Federal Government may from time to time, by notification in the official Gazette, declare.

(3) A Tribunal shall not take cognizance of any offence punishable under this section and not declared by the Federal Government under the preceding sub‑section to be cognizable for the time being, or of an offence punishable under Sections 122 and 150 of the Income Tax Ordinance, 1979 (XXXI of 1979) as applied by Section 19, except upon complaint in writing made by a person authorized by the Federal Government or the State Bank in this behalf;

Provided that where any such offence in the contravention of any of the provision of this Act or any rule, direction or order made thereunder which prohibits the doing of an act without permission and is not declared by the Federal Government under the preceding sub‑section to be cognizable for the time being, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.

(3‑A) A person authorized under sub‑section (3) to make a complaint in writing shall, if he is not already a public servant within the meaning of Section 21 of Pakistan Penal Code (Act XLV of 1860), be deemed to be a Public Servant within the meaning of that section.

(4) Where the person guilty of an offence under this Act is a Company or other body corporate, every Director, Manager, Secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offence and liable to the same punishment.

Section 22 only relates to the person who has been put on notice under section 19 of this Act to provide any required information as such it is not applicable in this case for the reason that notice if any has neither been issued to accused nor same has been indicated in the challan that the information provided by the applicant/accused was false.

Section 23 contains the punishment for violation of the provisions of Foreign Exchange Regulations Act, 1947 as such it only becomes applicable when any violation is brought on record to have been committed by applicant/accused.

Statement under section 164, Cr.PC of PW Muhammad Asif was recorded by learned Judicial Magistrate who states that one Muhammad Ali is his childhood friend who asked for some work in start of year 2014 that cheques were to be taken from AXACT and were to be handed over to Muhammad Junaid of Chanda Exchange. He further states that from April 2014 to March, 2015 he went to AXACT office for about 50 to 60 times from where one Faiz and Ayoub used to handover cheques to him which he used to take and handover to Muhammad Junaid of Chanda Exchange. He has further stated that sometimes said Muhammad Ali also asked him to deposit cheques in bank accounts so also sometimes he used to obtain cash from bank which were handed over to one Muhammad Arif / Guard of Chanda Exchange.

Statement under section 164, Cr.PC of PW Muhammad Ali Memon was also recorded who states that he is vendor of AXACT Company and had intimacy with officials of Finance Department who asked him for sending amount to Dubai as such requested his help if he knows any person. He specifically states that he was asked by Ayub and Faiz of Axact Company for sending the amount so also he states that he then introduced M/s. Chanda Exchange Company for the purpose of transmitting amount through Hawala. He has not stated at all as to whether applicant/accused Shoaib Ahmed Shaikh either asked him for remitting the amount out of Pakistan or had ever met with him for this purpose. Thus his statement is too far to connect applicant/accused with commission of alleged offence.

Not a single witness has stated in his statement under section 161, Cr.PC as to whether they were asked by applicant/accused Shoaib Ahmed Shaikh for transmission of alleged amount through Hawala. Mere signature of applicant/accused on the cheques which otherwise were cash cheques does not involve him to have committed the offence of transmitting the money to Dubai through Hawala. Moreover during investigation IO has also obtained email records as regards alleged Hawala transaction from accused Muhammad Younus and the same have been seized. First email is that of 08.12.2013 which has no nexus with the case as in this case cheque alleged to have been issued by applicant/accused is that of April, 2014. Remaining emails so seized are of July, 2015 and afterwards i.e. the period when the applicant/accused was in custody as such the same cannot implicate the applicant/accused with commission of offence.

Even the officials of Axact Company whose statements under section 161 Cr.PC have been recorded does not involve the accused with the commission of alleged offence as they have stated that they placed the cheques before applicant/accused being authorized signatory and all these cheques were admittedly “Cash” cheques as such the liability is upon presenter of the cheques even if any is to be established but they are not being prosecuted for the alleged offence by the FIA authorities. Moreover, there is no evidence/material brought on record that the amount was transmitted by applicant/accused or at his behest and such amount was sent through Hawala which then was received at Dubai by his vendors. The officials of Axact Company who are implicated by PW Muhammad Ali Memon have not been implicated at all in the case and even those officials have not implicated the applicant/accused in this crime.

In such circumstances, I have reached to the conclusion that even if accused is tried in this case, then too there is no probability of accused to be convicted of the charge as such prosecuting him on the basis of such facts, circumstances, material and evidence, the same will only result in abuse of the process of the Court, as such I am inclined to allow the application exercising the powers under section 249-A, Cr.PC and acquit the accused Shoaib Ahmed Shaikh in this case. He is confined in custody as such let his release writ be issued forthwith for releasing him if not required in any other custody case.”

7. State filed Criminal Acquittal Appeal No.390 of 2016 on 08.11.2016.

8. Thereafter, co-accused Muhammad Younis and Muhammad Junaid moved an application under section 249-A, Cr.PC for acquittal before trial court. It appears that trial court after hearing the learned counsel for the parties, acquitted co-accused named above in the case under section 249-A, Cr.PC. The operative part of said order passed by trial court dated 22.11.2016 is reproduced as follows:-

“I have considered the arguments and have perused the material available on record. Admittedly, there is no complaint in writing made by the State Bank of Pakistan through its authorized officer. However, during investigation in Crime No.7 of 2015, FIA authorities had sent letter to State Bank of Pakistan as regards to certain transactions made by M/s. Axact Pvt. Limited whereupon the State Bank of Pakistan only informed that M/s. Chanda Exchange Company is B-Category Company which is not authorized to transact the amount through Hawala. On the basis of this letter/reply, the FIA authorities had lodged this F.I.R. It is not denied that M/s. Chanda Exchange Company was authorized dealer in foreign exchange by the State Bank of Pakistan but only the allegation is that it was not authorized to transact the amount through Hawala, thus if the prosecution version is accepted as correct then it proves that the company had violated its license which was issued only for the specified purpose and if any company violates the terms of the license then the penal action as defined in subsection (5) of section 3 of the Foreign Exchange Regulations Act, 1947, which reads as under:-

“(5) Without prejudice to the provisions of Section 23‑B, if an authorized dealer commits contravention of any term of authorization or uses it for any purpose other than the purpose, or after the expiry of the period, for which it was given or contravenes or attempts to contravene or abets the contravention of the provisions of, or the general or special directions or instructions or permissions issued by the State Bank from time to time under any provisions of, this Act or any rules made thereunder, of engages in transactions not in conformity with the terms of authorization or fails to comply with any of the provisions of this Act or any rules, directions, instructions, or permissions made, issued or given thereunder or in the public interest it is necessary so to do or there otherwise exist reasons appearing sufficient to the State Bank, the State Bank may after giving a reasonable opportunity of being heard to the authorized dealer, cancel the authorization;

Provided that, if, in the opinion of the State Bank, any delay would be prejudicial to the public interest, the State Bank may, at the time of giving opportunity as aforesaid or at any time thereafter and pending the hearing as aforesaid, if any, by order suspend, for a period specified in the order, the authorization either wholly or to such extent as may be so specified.

But no action appears to have been taken by the State Bank of Pakistan as against M/s. Chanda Exchange Company. The only allegation against the applicants/accused is that they had sent money through Hawala to various persons but no evidence has been brought on record to indicate that the amount was every transferred for the purpose of Hawala illegally. All the allegations are only hearsay and there is no material evidence to connect that the accused persons transferred the amount through Hawala. Admittedly, the emails alleged to have been retrieved on the pointation or disclosure of applicants/accused persons were not sent through the email accounts of accused persons. Even prior to retrieving such emails, no permission was obtained from the Tribunal as regards search of the premises as per the requirements of Foreign Exchange Regulations Act, 1947. Even otherwise, said emails have been submitted by the IO and on perusing the same it appears that all these emails are sent or received in July, 2015 and afterwards that too has no concern with the instant case as in this case offence is alleged to have been committed during the period from April, 2014 to March 2015 and not a single evidence has been brought on record to indicate that any transaction through Hawala was sent by the applicants/accused in violation of Foreign Exchange Regulations Act, 1947. Moreover, there is no record to corroborate as to what benefit the applicants/accused persons had obtained in allegedly sending the money through Hawala for M/s. Axact (Pvt.) Limited when M/s. Axact (Pvt.) Limited has its own office situated in Dubai and they could legally transfer the amount through their internal transfer process. Admittedly, there is no complaint in writing made by the State Bank of Pakistan as against the applicants/accused/M/s. Chanda Exchange Company which was authorized by it to deal with foreign exchange. Had the State Bank of Pakistan found M/s. Chanda Exchange Company violating the terms of their licence then proper action could have been initiated as discussed above but no such action has been taken by the State Bank of Pakistan.

In such circumstances, I am of the view that even if all the prosecution witnesses are examined and the prosecution evidence is brought on record then too there is no direct evidence to connect the accused persons and establish the guilt as against them, as such, there is no probability of accused persons to be convicted of the charge.

In such circumstances, I am inclined to allow this application. Applicants/accused persons Muhammad Younus and Muhammad Junaid are therefore acquitted of the charge under section 249-A, Cr.PC. They are present on bail, their bail bonds stand cancelled and surety discharged.”

9. State filed Criminal Acquittal Appeal No.60 of 2017.

10. During pendency of aforesaid Acquittal Appeals, in Human Rights Case No.2335/2018, Honourable Supreme Court of Pakistan issued directions on 09.02.2018 for hearing of the Acquittal Appeals by a Division Bench of this Court. Relevant portion of the order reads as under:-

“3. We have been informed that FIA has lodged various FIRs under the provisions of Pakistan Penal Code read with Foreign Exchange Regulation Act, 1947 along with Anti-Money Laundering Act, 2010. However, proceedings in the matters have not reached their conclusion so far. Details of the proceedings are as follows:-

(i) FIR No.51 of 2015, dated 14.10.2015, lodged with FIA Commercial Bank Circle, Karachi under Sections 5, 8, 22 and 23 of the Foreign Exchange Regulation Act, 2010 read with Sections 109/34, PPC. In this matter, the accused were acquitted by the trial Court under Section 249-A of the Code of Criminal Procedure, 1898. An appeal has been filed by the FIA which is pending adjudication before the High Court of Sindh at Karachi.

The Registrar of the High Court of Sindh, who along with Registrars of other High Courts is present, pursuant to our direction, has apprised us that the matter has not been taken up for a considerable period of time and is still pending. The Registrar is directed to fix the appeal on Monday i.e. 12.02.2018. The case shall be heard by a Division Bench to be constituted by the learned Chief Justice of High Court of Sindh under the Rules. We are sanguine that the matter shall be heard and finally decided within a period of one month.”

11. This Division Bench is constituted for hearing the above appeals against the acquittal recorded by the trial court under section 249-A, Cr.PC

12. Mr. Salman Talibuddin, learned Additional Attorney General for Pakistan, appearing for the appellant/State argued that trial court has acted in haste and acquitted accused under section 249-A, Cr.PC. He made the following submissions:-

(i) That the impugned acquittal order has resulted in grave miscarriage of justice to State in the shape of huge monitory loss caused to the National Exchequer.

(ii) That respondents/accused were acquitted under Section 249-A, Cr.PC without recording the evidence of 26 prosecution witnesses.

(iii) That respondent Shoaib Ahmad Shaikh opened the account with Habib Bank Limited, Defence Housing Society, Karachi in the name of his mother, having obtained mandate in his name, issued 116 cheques with signatures from his company i.e. M/s. Axact (Pvt.) Limited.

(iv) That trial court failed to provide an opportunity to the prosecution to produce oral as well as documentary evidence to prove its case at trial.

(v) That trial court/tribunal did not consider emails/telegraphic transfer messages secured during investigation.

(vi) That expert report collected by the investigation officer was also not brought on record by trial court.

(vii) That findings of the trial court with regard to acquittal of respondents/accused are without substance/material.

In support of his contentions, learned Additional Attorney General for Pakistan has relied upon the following cases:

1. State vs. Mir Nabi Bakhsh Khan Khoso & others (1986 PCrl.LJ 1130)

2. The State through Collector of Customs & Excise, Quetta versus Azam Malik and others (PLD 2005 Supreme Court 686)

3. The State through Advocate General, Sindh High Court of Karachi versus Raja Abdul Rehman (2005 SCMR 1544)

13. Mr. Shaukat Hayyat, learned counsel for respondents/accused defended the impugned orders under section 249-A, Cr.PC by submitting that there was no sufficient material against respondents/accused before trial court for framing of charge. It is further contended that a Court can acquit the accused at any stage. It is further argued that no specific role has been assigned to respondent/accused Shoaib Ahmad Shaikh. No proper complaint was filed. Whole prosecution case is based upon presumption. Law had provided accused a remedy under section 249-A, Cr.PC to seek premature acquittal. It is further contended that presumption of double innocence is attached to the case of accused after their acquittal. Lastly, it is contended that there was no probability of conviction of the respondents/accused in the case. In support of his contentions, learned counsel for respondents/accused relied upon the following cases:

1. State of Rajasthan vs. Shera Ram alias Vishnu Dutta (2012 SCMR 1768)

2. Muhammad Moin versus Haji Pathan and 7 others (2017 PCr.LJ 535)

3. Ghulam Sarwar versus The State (2013 PCr.LJ 12 [Peshawar])

4. State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan, Karachi & other vs. Mukhtar Ali Sheikh (2004 Cr.LJ 115)

5. Shahid Latif vs. Manzoor Tarique Gul & Others (SBLR 2017 Sindh 623)

6. State through Secretary, Ministry of Interior versus Ashiq Ali Bhutto (1993 SCMR 523)

7. Sadruddin Abdullah Gangji versus The State (SBLR 2005 Sindh 864)

8. Muhammad Anwar and others versus Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255

9. Ghulam Sikandar and another vs. Mamaraz Khan and others (PLD 1985 Supreme Court 11)

10. Aftab Shahban Mirani vs. President of Pakistan & Ors (1998 SCMR 1863)

11. Yar Muhammad and 3 others vs. The State (1992 SCMR 96)

12. Inayatullah Butt versus Muhammad Javaid and 2 others (PLD 2003 Supreme Court 563)

14. We have extensively heard the arguments of learned counsel for the parties and have gone through the contents of F.I.R., statements of PWs recorded under section 161/164, Cr.PC, other material collected during investigation and cited precedents.

15. There can be no dispute that an application under section 249-A, Cr.P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings and the words "at any stage" denote that the application under section 249-A, c Cr.P.C. can be filed even before prosecution evidence had been recorded or while the exercise of recording of evidence is going or when the exercise is over. It is, however, to be noted that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage before framing of charge.

16. It will not be out of place to mention that in appeal, an order of acquittal of the accused under section 249-A or section 265-K of the Cr.P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles which are to be observed and applied in setting aside findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged trial to acquittal under section 249-A, Cr.P.C. would not be applicable

17. In the present case, Court took cognizance of offence by application of mind. After acceptance of challan, trial Court supplied copies of statements of witnesses to the accused. Prosecution has oral and documentary material/evidence to produce before the trial court in evidence but trial court acted in haste and acquitted respondents/accused before framing of charge. Trial Court ought to have provided a fair opportunity to the prosecution to produce evidence. It is alleged by prosecution that accused Muhammad Junaid used to withdraw cash against said cheques as mentioned in FIR and during inquiry, 116 cheques pertaining to said account containing signatures of respondent/accused Shoaib Ahmad Shaikh were recorded. During investigation, it transpired that accused Shoaib Ahmad Shiakh used to send remittance through Hawala in collusion with co-accused named above. Trial court should have disposed of the case on merits after recording of the prosecution evidence, statement of accused under section 342, Cr.PC, recording of statement of accused under section 340(2), Cr.PC, if so desired by the accused persons and hearing the arguments of learned counsel for the parties and that provisions of section 249-A, Cr.PC should not normally be pressed into action for decision of fate of a criminal case. In the present case, if allegations leveled in F.I.R., statements of PWs recorded under sections 161/146, Cr.PC and other material collected during investigation against the respondents/accused are admitted to be true, it cannot be said at this stage that there is no probability of conviction of the respondents/accused. Disputed questions of facts are involved in this case, which require evidence. In the above circumstances, we have come to the conclusion that trial court acted in haste in passing the order of acquittal which are, therefore, not sustainable in law. Reliance is placed on the case of Ghulam Farooq Tarar versus Rizwan Ahmad and others (2008 SCMR 383). Relevant portion is reproduced as under:-

“4. It is alleged in the private complaint that petitioner-complainant is owner of Messrs Kiran Publications which stands registered under the Companies Ordinance. The complainant while appearing as P.W.1 has specifically alleged that the two books in question were being published by his publishing company. Two fake purchasers were sent to the shop of the respondent-accused who purchased the books in question which it was alleged in evidence had been published by the respondent. It was on the basis of this preliminary evidence that the learned trial Court found that the complainant had a prima facie case pursuant to which the respondent-accused under section 249-A, Cr.P.C., the same Court acquitted the respondents by invoking section 249-A, Cr.P.C. without recording the prosecution evidence or forming the charge.

5. We have gone through the contents of the application moved by the respondent-accused under section 249-A, Cr.P.C. and note that the allegation that they got published the two books in. question had not been specifically denied. There is no cavil to the proposition that a Court can acquit the accused under section 249-A, Cr.P.C. if after hearing the Public Prosecutor it "considers that the charge is groundless or that there is no probability of the accused being convicted of any offence". If the allegations levelled in the complaint supported by the preliminary evidence are admitted to be true, it cannot be said at this stage that there is no probability of conviction of the respondent-accused. In the afore-referred circumstances, we are of the view that the learned trial Court acted in haste in passing the order of acquittal which is, therefore, not sustainable. Resultantly, this petition is converted into an appeal and allowed. The order of the trial Court dated 17-7-1999 and that of the High Court dated 7-5-2001 are set aside. The case shall be deemed to be pending before the trial Court which shall proceed with the same in accordance with law and will ensure that the same is concluded preferably within 5 months of the receipt of this order.”

18. For the above stated reasons, Criminal Acquittal Appeals Nos. 390 of 2016 and 60 of 2017 are allowed. Acquittal orders passed by the trial court in favour of respondent Shaikh Shoaib Ahmed on application under Section 249-A, Cr.PC vide order 24.08.2016 and order dated 22.11.2017 passed by trial court in favour of respondents Muhammad Juanid and Muhammad Younus on application under section 249-A, Cr.PC are set aside. Case shall be deemed to be pending before the trial court. Trial court shall frame charge against the accused on 03.03.2018 and conduct trial against the accused in accordance with law and decide the case within three months. Before parting, it is ordered that a copy of judgment be sent to Mr. Suhail Muhammad Laghari, Additional District and Sessions Judge, wherever he is posted for future guidance with advice to be careful in future.

Above are the reasons of our short order dated 26.02.3018.

J U D G E

Gulsher/PS