IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 881
of 2024
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Naimatullah Phulpoto, J
Irshad Ali Shah, J
1. For orders on
M.A.No. 11489/2024
2. For hearing of main
case
3. For hearing of
M.A.No. 11490/2024
02.10.2024
M/s Haider Waheed, Moula Bux Tunio and
Muhammad Asad Ashfaq Tola advocates for the applicants
Syed Aijaz Hussain Shirazi advocate for
respondent No.1
Peer
Riaz Muhammad Shah DAG
-.-.-.-.-.-.-.
Naimatullah
Phulpoto, J.-Through
this Criminal Misc. Application filed under Section 561-A Cr.P.C, applicants
HASCOL Petroleum Ltd and another seek quashment of the proceedings pending
before learned Judge, Banking Court-II, Karachi.
2. Notices were issued to the respondents
as well as DAG.
3. Learned advocate for the applicant
submits that cognizance order/issuance of B.Ws to accused has been passed by
learned Judge, Banking Court-II, Karachi without applying his judicial mind,
the same is vague, ambiguous and nullity in the eye of law and is non-speaking,
therefore, same may be set aside.
4. Learned DAG did not dispute correctness
of the submissions made by learned advocate for the applicant and has recorded
no objection if cognizance order/issuance of B.Ws to accused is set aside.
5. Syed Aijaz Hussain Shirazi advocate
appearing for respondent No.1/the Bank of Khyber strongly opposed the
submissions made by learned advocate for the applicant and argued that
statements of Attorneys of the Bank were recorded by the Banking Court.
Thereafter, cognizance has been taken, which is in accordance with law.
6. Heard arguments and perused the record.
7. In order to appreciate the contentions
raised by learned counsel for the parties, impugned order dated 17.05.2024 passed
by learned Judge, Banking Court No.II, Karachi is reproduced as under:
“The criminal
complaint in hand was filed by the Complainant against the above named accused
persons, in which statements of complainant’s attorneys under Section 200 Cr.PC
was recorded. Thereafter, the said complaint was sent to the Assistant Director
of FIA (CCC) Karachi for preliminary inquiry as required under Section 202(1)
of Cr.PC in order to ascertain the truth or falsehood of the complaint. In
compliance of Court order, Mr. Syed Usman Shah Assistant Director FIA (CCC),
Karachi filed his report on 17.05.2024.
In view of the
report filed by the Assistant Director FIA (CCC) Karachi the complaint in hand
be registered and brought on record. Issue Bailable warrants of Arrest against
the accused persons in the sum of Rs.2,000,000/- (Rupees Two Million Only)
each.”
8.
The perusal of impugned order
suggests that it has been passed without application of judicial mind, it does
not specify the penal section for which cognizance has been taken and it
appears to be non-speaking one. Therefore, it cannot be maintained.
9. Section 24A of the General Clauses Act,
1897 reads as under:
24A. Exercise of
power under enactments. (1) Where, by or under any enactment, a power to make
any order or give any direction is conferred on any authority, office or person
such power shall be exercised reasonably, fairly, justly and for the
advancement of the purposes of the enactment.
(2) The authority,
office or person making any order or issuing any direction under the powers
conferred by or under any enactment shall, so far as necessary or appropriate,
give reasons for making the order or, as the case may be, for issuing the
direction and shall provide a copy of the order or, as the case may be, the
direction to the person affected prejudicially.
10. Accordingly, for the above stated
reasons, cognizance order/issuance of B.Ws to accused dated 17.05.2024 is set
aside, case is remanded with direction to learned Judge to pass the order afresh
with adequate reasoning after providing chance of hearing to all concerned preferably
within 15 days from the date of passing of this order.
11. This Criminal Misc. Application is
accordingly disposed of.
JUDGE
JUDGE
Wasim
ps