PLJ 1999 SC 755

PLJ 1999 SC 755

[Appellate Jurisdiction]

Present: AJMAL mian, C. J. munawar ahmad mirza and sh. riaz ahmed, JJ.

STATE-Appellant

versus

NAZIR AHMAD etc.--Respondents Criminal Appeals Nos. 237 to 240 of 1992, decided on 30.11.1998.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 26.2.1992 passed in Criminal Appeals Nos. 1954, 205, 206 & 207 of 1991)

Pakistan Penal Code, 1860 (XLV of 1860)--

—-Ss. 365, 365-A and 34--Kidnapping for ransom-Offence of--Conviction for-Appeal against-Acceptance of-Acquittal appeal against-Abductee was forcibly lifted-Disclosure of accused lead to recovery of ransom money, arms and ammunition-Unchallenged version of complainant regarding abduction of H affords sufficient corroboration-Abductee was subjected to thorough and lengthy cross-examination by respondent, but none had attributed any enmity or direct motive against him-Manner of giving evidence and his entire narration of story appeared to be natural and truthful-He correctly identified respondent-In cases of kidnapping or abduction, unless there are strong reasons to discredit testimony of abductee, his statement carries substantial evidentiary value-Conclusion drawn by High Court in impugned judgment suffered from glaring misreading of evidence-Conclusions of trial Court approved, but sentence reduced to ten years due to good behaviour of respondent and his non-involvement in further offence-Appeal accepted.

[Pp. 768, 769, 770, 774, 775 & 776] A to E & H

PLD 1995 SC 1 ref.
Limitation-

—Offence u/S. 365/365-A/34 PPC-Conviction for-Appeal against-Acceptance of—Acquittal appeal filed with a delay of 63 days-Objection of limitation—It is settled that provisions of limitation must be strictly applied and vague or flimsy ground do not deserve adequate basis for condonation of delay-Similarly state is also placed on same pedestal as any other person claiming benefit in that behalf-Circumstances of each case has to be independently kept in view-In present case, authority which could show anxiety to pursue matter for challenging acquittal judgment was apparently disinterested-Gravity of offence obviouslyeffects society in general-Thus considering special situation wherebymaterial evidence had been discredited, delay in filing appeal in specificcircumstances condoned. [P. 775] F & G

Mr. Muneeb Ahmad Khan, Additional Advocate General Sindh, with Mr. Akhlaq Ahmad Siddiqui, Advocate-on-Record. for Appellant.Nemo for Respondents in Cr.A. Nos. 237, 238, & 240 of 1992.Mr. K.M.A. Samdani, Senior Advocate Supreme Court with Mr. N.C. Motiani, Advocate-on-Record for Respondent in Cr. A. No. 239 of 1992.Dates of hearing: 12 & 13.11.1998. judgmentMunawar Ahmad Mirza, J.-These appeals, by leave to the Court, are directed against judgment dated 26.2.1992 passed by High Court of Sindh, Karachi.

2. Relevant facts briefly mentioned are that on 24.8.1990 MehboobElahi lodged FIR No. 410/90 with Police Station Bahadurabad, Karachi,alleging that his son Hassan Mehboob aged about 16 years went in his carNo. R-6536 to Bungalow No, 15 of Jehangir Syed Shahzad, near P.I.A.Hospital, but did not return. Around 3.30 P.M. complainant was informedthat above car wherein his son had gone, was lying abandoned in a lane atsome distance from above-mentioned bungalow. Investigation commencedand extensive measures were adopted to trace out the son of complainant,namely Hassan Mehboob.

3. On 7.10.1990 at 5.40 A.M. Investigating Agency received reliableinformation about the culprits. The Police Party held "Naqabandi" nearKaram Ceramics Factory, and intercepted a Suzuki Pick-up coming from thedirection of Hub. Two persons namely, driver Dhani Bux and Suleman, eachof whom was carrying .32-bore pistol loaded with six live bullets, beingsuspects were apprehended alongwith above unlicensed pistols and loadedbullets. Interrogation revealed that both these accused were kidnapers andalso connected with abduction of Hassan Mehboob. On their pointationPolice Party raided Bungalow No. 34-A, Khayban-e-Janbaz, DefenceHousing Society, Karachi. Chowkidar Nazir Ahmed was found in possessionof a Kalashnikov -with magazine having 20 live bullets which were securedfrom his possession. Besides, a .22 bore rifle, loaded with five bullets and arepeater magazine loaded with fifteen bullets of Kalashnikov were alsorecovered from said house. Recovery memo Ex. 10 was prepared by ASIMuhammad Maroof. During investigation Chowkidar Nazir Ahmed madedisclosure about active involvement of Abdul Sattar Niazi, MuhammadAsim, Komail, Imran, and Din Muhammad alias Dino (absconding accused);in the abduction of Hassan Mehboob and his captivity. Thereafter on thepointation of Nazir Ahmed Chowkidar, co-accused-respondent Abdul SattarNiazi was apprehended by D.S.P. Arshad Kiyani from his house situated inDhobi Ghat Niazi Colony vide mashirnama Ex. 11. Abdul Sattar Niazi led Police Party to the house of accused Muhammad Asim situated in Jinnah Co-operative Housing Society from-where he was taken into custody. Similarly accused Muhammad Asim got arrested co-accused Imran and Komail on 8.10.1990. Car No. 221-421 used for kidnapping Hassan Mehboob was recovered at their instance from show-room of J.K. Motors situated in Sindh Muslim Housing Society, which on the basis of document was obtained by the accused on rent.

4. During the course of further interrogation accused-respondentMuhammad Asim also volunteered for arranging to produce ransom of Rs.3,00,000/- (Rupees three lacs) received by him and kept with PW. 4 AbdulWahid a carpet dealer. Consequently in presence ofMashirs said amount ofRs. 3,00,000/- (Rupees three lacs) lying in 'Khaki' coloured envelopeconsisting of three bundles of notes with denomination of Rs. 1,000/- eachwere secured through mashirnama Ex. 15. On 19th October, 1990, accusedDhani Bux pointed out oil-tanker No. QA-4510 belonging to KhairMuhammad of Village Haji Muhammad Goth Manghopir wherein HassanMehboob after being kidnapped was shifted. This was recovered throughmemo. Ex. 35. On 20.10.1990 accused Suleman gave confessional statementEx. 30 before C.I.A. Magistrate. Identification Parade of Suleman, DhaniBux, Abdul Sattar Niazi and Nazir Ahmed was also held through kidnapeeHassan Mehboob on 20.10.1990. After completion of investigation concernedpolice submitted challan before Judge, Special Court-II (Suppression ofTerrorist Activities) at Karachi, under Sections 365 and 365-A/34 on21.10.1990 against seven accused persons namely, Muhammad Asim, DhaniBux, Suleman, Nazir Ahmad, Komail Abid Sherazi, Muhammad Imran andAbdul Sattar Niazi; whereas Din Muhammad alias Dino was shownabsconder.

5. After the commencement of trial Special Court-II (S.T.A.),Karachi, framed charge against above named seven accused persons under
Sections 365/34 and 365-A/34 PPG, which was refuted and they pleaded'Not Guilty'. Prosecution has examined 11 witnesses, who are, S. Abdul
Jabbar, Car Dealer, PW. 2 Muhammad Yousaf, PW. 3 Arshad MehmoodButt, ASI, CIA, PW. 4 Abdul Wahid, Carpet Dealer, PW. 5 Mehboob Elahi
(Complainant), PW. 6 Afzal Baig, HC, CIA, PW. 7 Hassan Mehboob(kidnappee), PW. 8 Munawar, Property Dealer, PW. 9 Syecl Shehzad Dehli
Naqi, Magistrate, PW. 10 Sultan Masood Kiyani, Inspector CIA and PW. 11Sabir Hussain, S.I. Besides, recovery memos, confessional statement ofaccused Suleman and other related documents were produced through thesewitnesses. After close of prosecution side; trial Court examined the accusedon 2.6.1991 under Section 342 Cr.P.C. The all denied the prosecutionaccusations in their respective statements. Muhammad Asim additionallystated that he was absolutely innocent and prosecution witnessed havefalsely deposed against him. Said accused maintained that Rs. 3,00,000/-(Rupees three lacs) recovered from PW. 4 Abdul Wahid was his personalmoney and delivered to said witness for purchasing a suitable motor-car. Accused stated that he belongs to a rich family and furnished bank statement to show his financial position. According to him DSP Arshad Kama! Kiyani was hostile towards him because during June 1990 his car was illegally seized by said DSP, whereupon the accused/respondent Asim lodged a complaint before Chief Minister Sindh, who issued directions for taking action against the DSP. According to him the Investigating Officer namely, Masood Kiyani is brother-in-law of Arshad Kamal Kiyani and has been got involved him at his instance. Accused Dhani Bux in his statement has explained that on 26.2.1990 his elder brother namely, Haji Punoo lodged FIR with Anti-corruption Establishment against ASI Muhammad Rafique for demanding illegal gratification in connection with case of their relative Muhammad Hassan. This event annoyed said Muhammad Rafique whereupon his accomplice ASI Muhammad Maroof started giving him threats of dire consequences. Accused Dhani Bux explaining his position maintained that Hassan Mehboob (abductee) has implicated him at the instance of police. Accused Suleman asserted to have been falsely involved in this case by Inspector Sultan Masood Kiyani and elaborated that Inspector Aziz-ur-Rehman had kidnapped some unknown persons and Inspector Sultan Masood Kiyani raided house of Ghulam Qadir who was not present whereas police party unjustifiably arrested him and brought to CIA Lock-up. It is stated by accused/respondent Suleman that police had tortured him and when despite pressure he declined to give any statement against Ghulam Qadir they have fabricated documents of identification test and have managed his false implication through Hassan Mehboob. It was emphasized that Hassan Mehboob has acted at the instance of police. Accused Suleman expressly stated that co-accused Asim, Komail, Dhani Bux, Abdul Sattar Niazi and Nazir Ahmed were not known to him at all. Abdul Sattar Naizi similarly has asserted personal enmity with Ex-SSP CIA namely Habibullah Niazi who on a previous accused attempted to bracket him in a false case. According to him police at the instance of said Habibullah Niazi was harassing him and his family members. Accused in their defence have got recorded statements DW. 1 Abdul Sattar Niazi, DW. 2 Arshad Javed Niazi, DW. 3 Yousaf Khan, DW. 4 Zafrullah Khan, DW. 5 Nazir Ahmed, DW. 6 Dildar Ahmed Rajput, DW. 7 Dhani Bux son of Allah Dino and DW. 9 Suleman Brohi.

6. Trial Court on appreciation of entire evidence led by prosecution and defence has decided the case vide judgment dated 4.8.1991 through which learned trial Judge found accused/respondents (i) Suleman, (ii) Dhani Bux, (iii) Nazir Ahmed, (Abdul Sattar Niazi) and (v) Muhammad Asim guilty and convicted them under Section 365-A/34 PPC by awarding sentence of undergoing imprisonment for life and to pay fine of Rs. 50,000/-(Rupees fifty thousand) each; or in default to suffer further R.I. for three years each. Whereas accused Komail and Imran were acquitted of charge for want of evidence. Proceedings against Din Muhammad alias Dino (absconding accused) where kept on dormant file. Ransom amount ofRs. 3,00,000/- (Rupees three lacs) was directed to be returned to complainant Mehboob Elahi.

7. Aggrieved from above conviction and sentence four CriminalAppeals No. 194/91 (Nozzr v. State), 205/91 (Dhani Bux and Suleman v. IState), 206/91 (Hafiz Muhammad Asim v. State) and 207/91 (Abdul SattarNiazi v. State) were filed before High Court of Sindh, Karachi. These appealswere decided by the Division Bench of High Court of Sindh through common judgment dated 26.2.1992 whereby the appeals were accepted and accused/respondents were directed to be acquitted. The amount of Rs. 3,00,000/- (Rupees three lacs) was ordered to be refunded to accused Muhammad Asim.

8. The State being dissatisfied from above decision regardingacquittal of the accused-respondents had preferred Criminal Petitions forLeave to Appeal No. 54-K/92 (State v. Nazir Ahmed), 55-K/92 (State vDhani Bux and Suleman), 56-K/92 (State v. Muhammad Asim) and 57-K/92(State v. Abdul Sattar Niazi) before this Court after delay of 63 days whichcame up for hearing and leave was granted to reappreciate the evidence inthe light of contentions raised by the learned State counsel. The leavegranting order is reproduced below: -"Above petitions are barred by 63 days and the learned Additional Advocate General has requested for condonation on the grounds that it is a criminal case and since leave is being sought against the judgment of acquittal, several formalities had to be observed and final approval had to come from the Government, hence time was consumed and delay had occurred in obtaining such approval. We leave this issue open to be decided at the time of regular hearing.By these four petitions leave is sought to file appeals against impugned judgment dated 26.2.1992 of Division Bench of High Court of Sindh at Karachi, whereby four criminal appeals were heard together and allowed setting aside convictions and sentences. In petitions before us, in one Cr. Petition No. 54 of 1992 there are two respondents namely, Dhani Bux and Suleman, who had filed joint appeal in the High Court. Five respondent before us and two other co-accused were put on trial in the Special Court-II at Karachi for offence under Section 365/34 P.P.C. It was alleged by the prosecution that a young boy by name Hassan Mehboob was kidnapped for ransom. Trial Court while acquitting two namely, Komail and Imran convicted rest under Section 365-A P.P.C. and sentenced each to life imprisonment and fine of Rs. 500,000/- or in default R.I. for three years. Ransom amount of Rs. 3 lacs recovered duringinvestigation was directed by the trial Court to be returned to complainant Mehboob Ellahi, who is father of kidnapee. Four appeals filed by convicts have been allowed by the High Court vide impugned judgment resulting in their acquittal.It is submitted by learned A.A.G. that in this case there is cogent evidence legally justifying conviction which has not been properly evaluated by the High Court particularly when kidnapee himself has picked out respondents correctly in the Identification Parade. It is further stated that in this case ransom amount recovered has been ordered by the High Court to be paid back to respondent Asim from whom it was recovered. It is further submitted that there are several law points of public importance involved in this case. We, therefore, grant leave in this case to reappraise the evidence in the light of contentions raised before us. Issue bailable warrants against the respondents who have been acquitted in the sum of Rs. 50,000/- each with one surety in the like amount to be executed by and to the satisfaction of the trial Court. Paper book is to be prepared on the present record and it is open to the parties to file additional documents if any."Accordingly above petitions were converted into Appeals Nos. 237 to 240/92, respectively.

9. It may be seen that respondents Nazir Ahmed, Dhani Bux,Suleman in Criminal Appeals Nos. 237 and 238/92 have not been serveddespite best efforts on account of their shifting the place of residence ORslipping away, thus police has shown inability to execute non-bailablewarrants issued against them by this Court for want of their whereabouts.Consequently this Court on 10.11.1998 directed that perpetual warrantsshould be issued against them. Relevant portion of Order passed in abovetwo matters is reproduced below :"The above Criminal Acquittal Appeals are pending since 1992. It seems that in spite of issuance of repeated warrants of arrest, respondents Nazir Ahmad Chowkidar, Suleman and Dhani Bakhsh have not been served. The only course now left open is to issue perpetual warrants of arrest and to proceed with the matter. Order accordingly."

10. When arguments commenced it was brought to our notice thatAbdul Sattar Niazi respondent in Criminal Appeal No. 240/92 has beenmurdered on 8.9.1998. Verification of this fact was also made by S.S.PKarachi South, whereupon the proceedings is said appeal were disposed of by passing following order: -"Since respondent Abdul Sattar Niazi has been murdered on 8.9.1998 which is subject matter of FIR No. 126/98 registered on 8.9.98. This fact has been confirmed by SSP South Karachi on the basis of SSP West Karachi letter dated 10.11.98In view of the above position the above appeal is dismissed as having become infructuous."

11. Learned Additional Advocate General seriously criticizingcorrectness of impugned judgment whereby respondents have beenacquitted contended that factum of abduction with regard to HassanMehboob son of the complainant has not been disputed at any stage.Evidence produced by the prosecution overwhelmingly establishes differentfactors and sequences which explicitly support direct involvement of theaccused persons in commission of offence covered by Section 365-A/34.Learned State counsel greatly stressed that ransom amount of Rs. 3,00,000/-(Rupees three lacs) coincides with the amount deposited by respondentHafiz Muhammad Asim with PW Abdul Wahid, Proprietor of King Carpets,Tariq Road, Karachi. Defence evidence clearly connect the said respondentsand other material on record. Learned Additional Advocate Generalcanvassed that depositing of Rs. 3,00,000/- with a carpet dealer forpurchasing a CAR despite being strange and unbelievable displays weaknessof his stand taken in the present case. It was additionally argued thatabductee or his father (complainant) apparently had no motive against anyof the accused person, therefore, they had given true details of what hadhappened. These details coupled with other set of prosecution evidence;demonstrate sufficient and convincing basis for proving charge against therespondents.

12. As regards delay in filing of appeals learned Additional AdvocateGeneral pointed out numerous obstacles concerning prosecution andmeasures adopted for procuring sanction of the Competent Authority forfiling appeals. Learned State counsel argued that respondents areresponsible for commission of heinous crime which ₀ should not gounpunished merely on account of technicalities and minor omissions on thepart of concerned official.

13. Mr. K.M.A. Samdani, Sr. ASC, for respondent MuhammadAsim in Cr. A. No. 239/92 opposing the appeal canvassed that version ofcomplainant Mehboob Elahi remained unsupported by independentevidence, therefore, his testimony is not confidence inspiring. Learnedcounsel maintained that identification tests were materially defective andinadmissible. Similarly, according to him, confessional statement ofrespondent Suleman was neither true nor voluntary, thus it does not by anymeans implicate respondent Muhammad Asim. He emphasized that HighCourt while reappraising entire evidence had correctly assessed the sameand interfered with defective findings of the trial Court on the hasis of soundreasoning. He pressed for dismissal of appeals. Mr. Samdani had seriouslyobjected to the delay in filing of appeals and stated that appellant was notentitled to any preference. He, in support of his contentions, placed relianceon the observations in PLD 1981 SC 241 (Saldera v. Muhammad Yar).

14. With the assistance of learned counsel for the parties we have carefully gone through entire record and considered above submissions. We feel that for proper appreciation, it would be necessary to give brief resume from the depositions of witnessesPW. 1 S. Abdul Jabar deposed that he owns J.K. Motors and also cany 'rent a car business'. On 21.8.1990 at about 11/12 noon Komail accused (acquitted by the trial Court) had obtained 'Charade' car No. 221-421 on rent after fulfilling requisite formalities. On 28.8.1990 said Komail returned the amount due on account of car-rent. Witness stated that later car was secured from his show-room vide Ex. 7 on 8.10.1990.

PW. 2 Muhammad Yousaf the owner of New Crown Motors andresident of Mohallah where house of above-referred Komail accused issituate. The witness stated that on 21.8.1990, accused Komail approached forrenting out a car. Witness referred him to J.K Motors in the business of'Rent-a-Car'; who then took-over rent-car on 21.8.1990 and returned it towards 28.8.1990.P.W. 3 Arshad Mahmood Butt. ASI, CIA Centre, in his testimony before trial Court stated that on 7.10.1990 he accompanied Inspector Sultan Masood Kiyani, SI Latif Sheikh, ASI, Maroof, ASI Aijaz and other police personnel for patrol duty. On receiving credible information at about 5.45 A.M. near Kai'am Ceramic Factoiy they intercepted a suzuki pick-up coming from Hub side towards Karachi. Accused-respondent Dhani Bux was driving the vehicle whereas accused-respondent Suleman was accompanying him. On search they secured .32-bore pistol loaded with six live bullets from each of the respondents namely Dhani Bux and Suleman. These weapons along with bullets were secured from the possession of above respondents under a mashirnama. The witness further deposed that said accused-respondents on interrogation led the Police Party to a house No. 34-A, Clifton, Karachi, — where Chowkidar Nazir Ahmad was taken into custody. Said Chowkidar was found to be connected with abduction of Hassan Mehboob. The house was also searched and 7mm rifle loaded with five bullets, one kalashnikov loaded with 20 live bullets in magazine was recovered from a room of said house. Mashirnama Ex. 10 was prepared at the spot. Accused persons were taken into custody. Respondent Nazir Ahmed voluntarily pointed out residence of Abdul Sattar Niazi who was found concerned with crime and later

apprehended him from his house located in Dhobi Ghat Niazi Colony. Respondent Abdul Sattar Niazi disclosing about active participation of Respondent Muhammad Asim led the Police Party to Bahadurabad and identified his residence. Thus respondent Muhammad Asim was also apprehended vide mashirnama Ex. 12. On the pointation of Muhammad Asim Bahadurabad Police apprehended Imran vide Ex. 14. During further interrogation respondent Muhammad Asim admitted that ransom money was deposited by him with PW. 4 Abdul Wahid of King Carpets. Police Party on the pointation of Muhammad Asim recovered said amount of Rs. 3,00,000/- (Rupees three lacs) vide mashirnama Ex. 15 on 14.10.1990. Complainant then produced before Inspector Sultan Masood Kiyani cassette/tape showing dialogue between him and the kidnappers; for arranging ransom amount and consequential release of his son. In cross-examination it was not disputed that Bungalow No. 34-A, which was in possession of Sardars of Balochistan and Nazir Ahmed was working as Chowkidar. Witness did not dispute existence of several facts in the vicinily of said Bungalow.

PW. 4 Abdul Wahid, proprietor of King Carpets in his statement admitted that sum of Rs. 3 lacs for purchase of car was given to him by mother of respondent Muhammad Asim on 17.10.1990. This witness further tried to explain that he also deals in purchase of cars. He was, however, declared hostile by the prosecution and during cross-examination by APP it was conceded that respondent Muhammad Asim was his relative. Signature on mashirnama regarding recovery of Rs. 3 lacs consisting of currency notes with denomination of Rs. 1,000/- each, was not disputed. Answering query on behalf of respondent witness admitted investment of respondent's mother in carpet business.

P.W. 5 Mehboob Elahi. in his testimony before trial Court stated that on 24.8.1990 at about 3.00 P.M. he was informed by Chowkidars of market that burglary was committed in shops of Jehangir and Sikandar, who were his relatives. Complainant then sent his son Hassan Mehboob to drop said chowkidars near the houses of Sikandar and Jehangir. Witness deposed that his son Hassan Mehboob drove car No. R-6536 Nissan Sunny for said purpose but did not return for quite some time. Distance of Jehangir's house being hardly drive of five minutes, complainant became perturbed and made inquiries whereupon it revealed that son of the complainant had left immediately after dropping the chowkidars. They made efforts to locate Hassan Mehboob. It was found that car was standing abandoned in the middle of lane near PIA Hospital. At about 4.00 P.M. witness (complainant) received a call on his telephone No. 433860 wherein he was threatened not to collect so many people in the house. Telephonically it was informed that his son Hassan Mehboob was in their custody, and he should abstain from placing the telephone under observation. There was no contact by the culprits for eighteen days. Again on 10.9.1990 at about 7.00 P.M. a telephonic call was received enquiring whether he was prepared topay ransom. Witness further deposed that he showed inability to pay the amount of ransom being demanded by them. The person calling him, however, gave his Coded name as "JAN". He also extended threats requiring him to remain silent. Two days thereafter "JAN" contacted the complainant and demanded ransom whereupon he asked the culprit to disclose his identity and also demanded tapes containing voice of his son Hassan Mehboob. Later another person contacted on telephone and enquired, whether tape of his son were received. The person calling on telephone further informed that his son was using medicine 'Calan' and that his uncle calls him 'Malang'. These details convinced the witness that his son was in their custody, therefore, he agreed to pay ransom which may be within his capacity. He also told that ransom was already paid by him earlier. Again telephone call was received by somebody claiming to be "Guarantor". He asked that his son would not be harmed if ransom to their satisfaction is paid. Initially culprits demanded exorbitant amount of Rupees fifty lacs then reduced to Rs. 30 to 35 lacs and ultimately agreed to the payment of Rupees three lacs assuring abductee's return. After telephonic discussion and negotiation the complainant as asked to bring Rs. three lacs to Mudassar Masjid in KDA Scheme No. 1 at 11 or 11.30 A.M. On 26.9.1990 money was kept on the third rack in the lower portion of mosque. The cash amount was placed wrapped in newspaper at specified place, as desired by the culprits. Since nobody turned up complainant brought back the money. When he reached home he received telephonic message enquiring why money was not kept there as promised. Witness informed the caller about factual position pointing out that nobody was present therefore, he brought back the money. On the demand of culprits complainant went back to keep the money at specified place. When witness came back, the guarantor rang up and confirmed receipt of ransom amount and assured release of the kidnappee. Consequently Hassan Mehboob the son of complainant was released at the Super Highway, who reached home on 2nd October, 1990. Conversation was recorded on the tape which was retained by the Court as Article 'A'. Averments of FIR were also affirmed by the witness. Allegations about false involvement, fictitious improvement in the statement and falsity of paying Rs. three lacs twice was denied during his cross-examination.PW. 6 Afzal Baig, HC. CIA, deposed that on 7.10.1990 at about 5.50 A.M. they alongwitb police party comprising of Inspector Sultan Masood Kiyani and others after making entries in the roznamcha intercepted suzuki pick-up near Manghopir Karam Ceramic Factory, which was moving from Hub towards Karachi. Respondent Dhani Bux and his companion Suleman, each of whom was carrying .30-bore pistol with 6 loaded cartridges were apprehended and said ammunition was recovered from their possession through mashirnama Ex. 21. He explained that no private witness was available at that time.PW. 7 Hassan Mehboob, kidnappee deposed that on 24.8.1990 at about 3.00 p.m. under the direction of his father, he went to drop two ckowkidars at the house of Jehangir their relative in car No. R-6536, Nissan Sunny. On his way back, near PIA Hospital suddenly a white Charade car with tainted glasses appeared from front side and blocked his way. One person came out from said car and forcibly pulled by catching him from his neck and pushed into their car. The culprit was armed with a pistol. Three person/culprits were already sitting in said -car. The vehicle of kidnappee Hassan Mehboob was left in the middle of road with key in its starter. One of the culprits had pressed his head and face with white pillow. They then drove their Charade Car for about 15/20 minutes and accused Dhani Bux came inside the car and took him (Abductee Hassan Mehboob) to a house where he was kept during day. At night another culprit brought meals for him. At about mid-night they took him (the abductee Hassan Mehboob) in a wagon to some other house where he was detained for about five days. Two culprits, however, used to bring meals for him. He identified one of them to be Abdul Sattar Niazi. Witness further deposed that during this period another culprit used to visit with muffled face and informed his colleagues that demand of Rs. fifty lacs ransom has been raised. Thus on receiving said amount kidnappee would be released. After about 5 days witnesss (Hassan Mehboob) was shifted to Balochistan in a Tanker by another person namely Ishtiaque, who was short stature and had big mostaches. He was then taken to jungle in a hilly track. According to version of Hassan Mehboob, the culprits kept him for about 9 days in said area. During this period respondent Suleman also became friendly and told him that he could be set free if he manages rupees one lac. Suleman told that Komail, Asim and Imran had got him abducted for procuring ransom amount. Komail and Asim came in the jungle area where witness was lodged and enquired about the medicine which he was taking and also wanted to know the pet name with which his uncle called him. He told them, that he uses 'Calan' medicine and his uncle calls him 'Malang'. He was shifted to different places during this period. Witness came to know about names of Komail and Asim through respondent Suleman. After few days he was taken to Super Highway in a truck and left free by giving him Rs. 130/-. It is narrated by the witness that when he reached home he was not in full senses, therefore, his father (complainant) sent him to Lahore, without meeting anybody. Later he read in the newspapers that kidnapers have been apprehended. Abductee thereafter was called to Karachi. Identification Parade was held under the supervision of Special Magistrate CIA and witness (abductee) had correctly picked-up Abdul Sattar Niazi, Dhani Bux, Suleman and Nazir Ahmed Chowkidar. Witness explained that he was kept in jungle for about 25 days during this period, culprits continued shifting him from one place to another. He did not raise any hue or cry due to fear. Witness reaffirmed correctness of his version when suggestions were made during cross-examination. The objection about seeing accused persons before identification test were specifically denied.

(e) as to order of indorsement; that the indorsementsappearing upon a negotiable instrument were made inthe order in which they appear thereon;

(f) as to stamp; that a lost promissory note, bill ofexchange or cheque was duly stamped;

(g) that holder is a holder in due course; that the holderof a negotiable instrument is a holder in due course;provided that, where instrument has been obtainedfrom its lawful owner, or from any person in lawfulcustody thereof, by means of an offence or fraud, orhas been obtained from the maker or acceptor thereofby means of an offence or fraud, or for unlawfulconsideration, the burden of proving that the holder isa holder in due course lies upon him."

9. In our view, prima facie there is nothing uptil now on record fromwhich it can be concluded that either the above Explanation to Section 9 ofthe above Act is attracted to or Section 58 thereof. On the contrary, aspointed out hereinabove, there is no allegation in the body of the plaint or inthe application filed under Order XXXIX Rules 1 and 2 C.P.C. or in thesupporting affidavit which may disentitle Respondent No. 1 from receivingthe amount under the bills of exchange. There is nothing reliable on recordtill now from which the presumption attached to the validity of the bills ofexchange under Section 118 of the above Act can be negated.

10. Mr. Gul Zarin Kiani, learned ASC for the appellant, has referredto the following case law in support of his above submission:-(i) An unreported order dated 26.6.1998 passed on C.M.A. No, 519 of 1998 in Civil Appeal No. 879 of 1998 by this Court, which appeal was directed against the order of a learned Single Judge of the Labors High Court directing that the amount of installments due under the letter of credit be paid to the appellant on the condition of furnishing a bank guarantee was modified as the quantum of amount.

(ii) Messrs U.D.L. Industries Ltd. versus Hongguang Electron Tube Plant and others (PLD 1997 Karachi 553);in which a learned Single Judge of the High Court .of Sindh allowed the encashment of a letter of credit subject to furnishing bank guarantee by the defendants on an application under Order XXXIX, Rules 1, and 2 C.P.C. afterhaving found that the whole transaction was vitiated by fraud on the part of the seller.

(iii) Pan Ocean Enterprises (Pvt) Limited versus Thai Rayon Company Limited and 5 others (PLD 1990 Karachi 395)In the above case a learned Single Judge of the High Court of Sindh after having found prima facie that the bill of lading contained wrong statements of facts particularly about the dates of shipping, vessels in which the goods were loaded and that there was transhipment, and all this was in violation of the terms of letter of credit, restraining Defendants Nos. 1 and 6 from claiming payment under the letter of credit in question and Defendants Nos. 4 and 5 from making any payment thereunder until and unless Defendant Nos. 1 and 6 furnished bank guarantee equivalent to the amount of letter of credit.

(iv) Messrs Kohinoor Trading (Pvt.) Ltd. versus Mangrani Trading Co. and 2 others (1987 C.L.C. 1533);in which a Division Bench of the High Court of Sindh to which one of us (Ajmal Mian C.J.) was a party, maintained the order of a learned Single Judge declining to issue a restraint order against the bank from releasing the amount under a letter of credit and observed as follows as to the law governing the grant of an ad-interim injunction restraining the bank from" honouring its commitment under a letter of credit: -"The above cases cited by Mr. Nasim Farooqui and the passages from the Book referred to by him indicate that generally an irrevocable letter of credit cannot be dishonoured by a bank but there may be exceptions to the above general rule, for example, where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent but the evidence on the question of fraud as to the bank's knowledge must be clear, or when there is challenge to the validity of the letter of credit. In the present case Respondent No. 3 Bank was to remit L/C amount to their counterpart in Switzerland on the basis of the commitment madj by them. The appellants obtained the documents from Respondent No. 3 without any protest and without pointing out that there was any breach as to the terms of the L/C. It is also apparent that though the alleged survey report (which according to the learned counsel for the Respondents 1 and 2 is an ex parte carried out after several weeks from the date of the delivery) indicates that the packing of the goods v/ere allegedly found in damaged condition, the appellants had taken the delivery of the goods from thecarrier without any protest. The question, whether the goods were despatched by Respondent No. 2 in accordance with the description given in the letter of credit or whether there was any breach as to the quality would be an issue at the trial. In our view, under an irrevocable letter of credit payment cannot be stopped on the ground that there was some breach on the part of the vendor as to the quality of the goods. An irrevocable letter of credit is a negotiable document in the commercial world which is negotiated inter alia inter se between the banks and, therefore, the Court cannot lightly cause its dishonouring by one bank to another, unless prima facie a sufficiently grave cause is shown. If we were to accept the contention of Mr. Nasim Farooqui it will gravely impair reliability and sanctity of an irrevocable letter of credit and will lead to commercial uncertainly. Any irrevocable letter of credit is open in favour of a foreign exporter through a bank, which in turn makes commitment to a foreign bank, which is turn makes the payment generally against the bill of lading and other necessary documents after the shipment of the goods."

(v) The State Trading Corporation of India Ltd., Appellant u. Jainsons Clothing Corporation and another, Respondents. (AIR 1994 S.C. 2778);In the above case the Indian Supreme Court allowed an appeal against a restraint order against the encashment of a bank guarantee and enunciated law in respect thereof in the following terms:-

"9. The grant of injunction is a discretionary power in enquity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade of business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e. bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the party's favour, he/it is entitled to damages or other consequential reliefs.

10. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, C.P.C. should prima facie be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremedial injury. The court should normally insist .upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud."

(vi) Syndicate Bank, Appellant v. Vijay Kumar and others, Respondents. (AIR 1992 S.C. 1066);in which the Indian Supreme Court allowed the appeal of the appellant bank against a restraint order passed in respect of two FDRs over which the bank had lien in respect of the liability of the judgment-debtor. However, the case was remanded in the following terms:-"However, in the view taken by us above namely that the Bank has a general lien over the two FDRs we set aside the order of the High Court directing the appellant-Bank to deposit an amount of Rs. 35,000/-. The High Court shall, however, consider the objections raised by the Bank, namely that no amount are due to the judgment-debtor, in the light of the above principles laid down by us and then decide whether there is any amount left for being attached by the decree-holder in execution of the decree. With the above directions the appeal is accordingly allowed. In the circumstances of the case, there will be no order as to costs."

(vii) General Electric Technical Services Company Inc., Appellant v. M/s Punj Sons (P) Ltd. and another, Respondents. (AIR 1991 S.C. 1994);In the above case the Indian Supreme Court allowed the appeal against the judgment of the High Court and reiterated the principle of law relating to un-conditional bank guarantee and un-conditional bond in the case of U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. '(1988) SCC 174) as under:-"Almost all such cases have been considered in a recent judgment of this Court in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd., (1988) I SCC174, wherein Sabyasachi Mukherji, J., as he then was, observed (at p. 189): 'that is order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guarantee. There should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Otherwise, the very purpose of bank guarantees would be negatived and the fabric of trading operations will get jeopardised'. It was further observed that the Bank must honour the bank guarantee fee from interference by the Courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the Court should interfere. In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a traditional bond or performance guarantee, the obligation of the Bank appears to be the same. If the documentary credits are irrevocable and independent, the Bank must pay when demand is made. Since the Bank pledges its own credit involving its reputation. It has no defence except in the case of fraud. The Bank's obligations of course should not be extended to protect the unscrupulous party, that is, the party who is responsible for the fraud. But the Banker must be sure of his ground before declining to pay. The nature of the fraud that the Court talk about is fraud of an "egregious nature as to vitiate the entire underlying transaction". It is fraud of the beneficiary, not the fraud of somebody else."

(viii) Centax (India), Appellant v. Vinmar Impex Inc. and others (AIR 1986 S.C. 1924):In the above case the Indian Supreme Court, while dismissing the appeal and maintaining the order of the High Court declining to restrain the bank from making payment, reiterated the principle governing the grant or refusal of injunction in respect of payment under the letter of credit as follows:-"This case is really an extension of the principles laid down by this Court in United Commercial Bank's case. The main point in controversy in that case was whether the Court should in a transaction between a banker and banker grant an injunction at the instance of the beneficiary of an irrevocable letter of credit, restraining the issuing bank from recalling the amount paid under reserve from the negotiating bank, acting on behalf of the beneficiary against a document of guarantee indemnity at the instance of thebeneficiary. In dealing with the nature of & banker's obligation under an irrevocable letter of credit, the Court observed:"In view of the banker's obligation under an irrevocable letter of credit to pay, bis buyer-customer cannot instruct him not to pay. In Hamzeh Malas v. British Imex Industries Ltd., (1958) 2QB 127, the plaintiffs, the buyers, applied for an injunction restraining the sellers, the defendants, from drawing under the credit established by the buyer's bankers. This was refused. Jenking, LJ stating at p. 129 that:.... the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods which imposes on the banker an absolute obligation to pay ... and that this was not a case in which the Court ought to exercise its discretion and grant the injunction.The Court held that the same considerations shouldapply to a bank guarantee, and added:

(ix) United Commercial Bank, Appellant v. Bank of India and others, Respondents (AIR 1981 S.C. 1426);In the above case the Indian Supreme Court allowed an appeal against the judgment of the High Court and held that the Courts should refrain from granting injunction to restrain the performance of the contractual obligations arising out of letter of credit or a bank guarantee between one bank and another by reiterating as follows:-"A bank which gives a performance guarantee must honour that guarantee according to its terms. In R D. Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd., (1977) 3 WLR 752, Kerr, J. considered the position in principle. We would like to adopt a passage from his judgment at p/761: I| is only in exceptional cases that the Courts will interferewith the macmnery of irrevocable obligations assumed by banks. They are the life-blood of international commerce. Such obligations are regarded as collateral to the underlying rights and obligations between the merchants at either end of the banking chain. Except possibly in clear cases of fraud of which the banks have notice, the courts will leave the merchants to settle their disputes under the contracts by litigation or arbitration as available to them or stipulated in the contracts. The courts are not concerned with theirdifficulties to enforce such claims; these are risks which the merchants take. In this case the plaintiffs took the risk of the unconditional wording of the guarantees. The machinery and commitments of banks are on a different level. They must be allowed to be honoured. Free form interference by the courts. Otherwise trust in international commerce could be irreparable damaged.

(x) M/s. Tilokchand Motichand and others v. H.B. Munshi, Commissioner of Sales Tax, Bombay and anotherIn this case also the Indian Supreme Court re-affirmed its view that in international trade irrevocable letters of credit are very important and the Court should refrain from interfering with the autonomy of an irrevocable letter of credit is entitled to protection.

(xi) M/s. Synthetic Foams Ltd. v. Simplex Concrete Piles (India) Put. Ltd. (AIR 1988 Delhi 207);in which a learned Single Judge of the Delhi High Court granted an ad-interim injunction restraining the encashment of a bank guarantee and after having found prima facie that the beneficiaries/defendants had invoked the bank guarantee by suppression of material facts but where there allegations of fraud in so far as they had not disclosed that the contract had been cancelled by the defendants due to increase in price and technical reasons without any fault or mistake of the plaintiff.

(xii) M/s. Banerjee & Banerjee, Petitioner v. Hindusthan Steel Works Construction Ltd. and others, Respondents (AIR 1986 Calcutta 374):In the above case a learned Single Judge of the Calcutta High Court observed that suppression of material facts by beneficiary while seeking enforcement of bank guarantees will entail special equity in favour of principal debtor to stop payment by bank on the basis of demand letters in respect of the bank guarantees and the letters of credit

(xiii) National Oils & Chemical Industries, Delhi, Plaintiff v. Punjab & Sind Bank Ltd., Delhi and another (AIR 1979 Delhi 9):In the aforesaid case a learned Single Judge of the Delhi High Court held that the principle of independence of bank's obligation under the letters of credit was not to be extended to protect unscrupulous sellers and that in the case before him there was good ground for an ad-interim injunction.

(xiv) Braja Kishore Dikshit, Appellant v. Purna Chandra Panda, Respondent. (AIR 1957 Orissa 153);in which a learned Single Judge of the Orissa High Court construed inter alia Section 9 of the Negotiable Instruments Act, 1881, and held that in order to be a holder in due course, three conditions are necessary, namely:

(i) that the endorsee becomes the holder in due course when it is for consideration.

(ii) he can be an indorsee before the amount mentioned in the promissory note became payable; and

(iii) without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

(xv) (Vatakkam Chirayil Parkum) Kurundaliammal-Plaintiff-Appellant u. T.P.E.N. Kunhi Kannan and others-Defendants-Respondents (AIR 1930 Madras 141);In the above case, a learned Single Judge of the Madras High Court, while construing Section 9 of the Negotiable Instruments Act, held that unless a person proves that he is a holder in due course within the meaning of Section 9, he could not have any higher or superior rights against the drawer than the intermediate holders themselves would have, and that, the person knows of the defect of title of the intermediate holders and it is enough to disentitle that person to the benefits of a holder in due course.

11. On the other hand, Mr. Jawwad S. Khawaia, learned ASC appearing for Respondent Nos. 1 to 3, besides referring the cases mentioned at serial numbers (v), (xi) and (xiv) of Para 10 already referred to by Mr. Gul Zarin Kiani and discussed hereinabove and need not be repeated, has relied upon the following treatises and the case law.

(i) The Law of Bankers' Commercial Credits by the late H.C. Gutteridge and Maurice 1984 Edition.In the above treatise the authors dealt with the effect of irrevocable letter of credit as follows:-"The effect of an irrevocable credit is to substitute the issuing bank for the buyer as the person who undertakes to 'buy' the shipping documents, and this is an undertaking which is absolute in the sense that so long as the documents of title to the goods which the seller tenders to the bank are in order, in the sense of being those prescribed in the credit, the bank must accept them regardless of any controversy between the seller and the buyer as to whether the contract of sale has been performed."

(ii) Documentary Credits by Raymond Jack, 1993 EditionIn the aforesaid treatise the author under the caption "the autonomy of the credit" has made the following observations as to the basic rule that the Court will not interfere to prevent the operation of credit: "The basic rule - the autonomy of the credit. The basic rule is that the court will not interfere to prevent the operation of a credit on the ground of matters which are extraneous to the credit itself. This is but one aspect of the autonomy principle. In Hamzeh Malas & Sons v. British Impex Industries Ltd. the plaintiff buyers considered that the goods supplied as the first installment under a two-installment contract were seriously defective and sought to prevent the defective sellers from presenting documents in respect of the second installment under the confirmed credit which the buyers had arranged to be opened as the means of payment. The injunction was refused. In giving the leading judgment in the Court of Appeal Jenkins LJ stated:"We have been referred to a number of authorities, and it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this court in the present case to interfere with that established practice.There is this to be remembered, too. A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price. That is of no mean advantage when goods manufactured in one country are being sold in .another. It is, furthermore, to be observed that vendors are often reselling goods bought from third parties. When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is - and I think it was followed by the defendants in this case -to finance the payments necessaiy to be made to their suppliers against the letter of credit. That system of financing these operations, as I see it, would break down completely if a dispute asbetween the vendor and the purchaser was to have the effect of "freezing", if I may use that expression, the sum in respect of which the letter of credit was opened."

(iii) Frey & Son, Incorporated, Appellant v. E.R. Sherburne Company and The National City Bank of New York, Respondents. App. Div. Vol. CCCIII, November 12,1920.In the above case the Appellate Court Division maintained the order declining to grant an ad-interim injunction restraining the bank from making payment to the holder of a bill of exchange by observing as under:-"We are of opinion that the facts appearing in the opinion of that case did not warrant the granting of an injunction. Interests of innocent parties who may hold drafts upon the letter of credit should not be made to suffer by reason of rights that may exist between the parties to the contract of sale in reference to which the letter of credit was issued. It would be a calamity to the business world if for every breach of a contract between buyer and seller a party may come into a court of equity and enjoin payment on drafts drawn upon a letter of credit issued by a bank which owed no duty to the buyer in respect of the breach. The parties should be remitted upon their claim for damages to an action at law.We think the order should be affirmed, with ten dollar cost and disbursements." (iv) Hamzeh Malas & Sons v. British Imex Industries Ltd. (2Queen's Bench Division 127);In the above case the Court of Appeal England maintained the order of Donovn J. declining to restrain the bank at the behest of a Jordanian firm which purchased from the defendant, a British firm, a large quantity of reinforced steel rods and observed as follows:-"We have been referred to a number of authorities, and it seems to be plain enough that the opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not. An elaborate commercial system has been built up on the footing that bankers' confirmed credits are of that character, and, in my judgment, it would be wrong for this court. In the present case to interfere with that established practice."

53. On the question whether the High Court should, in a transaction between a banker and a banker, grant an injunction at the instance of beneficiary of an irrevocable letter of credit restraining the issuing bank acting on behalf of the beneficiary against a document of guarantee at the instance of the beneficiary this Court held that: (SCR headnote) (SCC P. 784, para 41)"The High Court was wrong in granting the temporary injunction restraining the appellant bank from recalling the amount paid to the respondent bank. Courts usually refrain from granting injunction to restrain the performance of the contractual obligations arising out of a letter of credit or a bank guarantee between one bank and another. If such temporary injunctions were to be granted in a transaction between a banker and a banker, restraining a bank from recalling the amount due when payment is made under reserve to another bank or in terms of the letter of guarantee or credit executed by it, the whole banking system in the country would fail."

12. From the above cited case law and the celebrated treatises on the subject, it appears that the effect of an irrevocable letter of credit is to substitute the issuing bank for the buyer as to the person who undertakes to buy the shipping documents and this undertaking is absolute in the sense that so long as the documents of title to the goods which the seller tenders to the bank are in accordance with the terms of the contract, the bank is under an obligation to accept the same regardless of any dispute between the seller and ttj buyer as to the quality of the goods or otherwise. Any dispute between the seller and the purchaser is extraneous in such a case. On the basis of the above legal position an elaborate commercial system has been built up on the footing that bankers' confirmed credits an of that character which do not call for interference by a Court of law. The above system would break down completely if a dispute as between the seller and the purchaser was to have the effect of freezing the sum in respect of which the letter of credit was opened.It is only in exceptional cases that the Court will interfere with the machinery of irrevocable obligation assumed by banks for the reasons that they are the life blood of international commerce. The above exceptionalcases include, where it is proved that any demand for payment already made or will thereafter be made will clearly be fraudlent or when there is a challenge to the validity of a letter of credit on a ground akin to fraud or concealment of material facts.

i It may be observed that holder in due course of a bill of exchangeexecuted in respect of a letter of credit stands on a higher pedestal than a simpliciter beneficiary under a letter of credit. It may be stated that the interest of innocent parties, who may hold drafts upon letter of credit, should not be made to suffer by a reason of rights that may exist between the parties to the contract in reference to which the letter of credit was issued. It would be a sad day in the business world if for every breach of contract between the buyer and the seller a party may come to a Court of equity and enjoin payment on drafts drawn upon a letter of credit issued by a bank which owes no duty to the buyer in respect of the breach.The same principles are applicable to a bank guarantee. A contract of bank guarantee is a trilateral contract under which the bank has undertaken to un-conditionally and irrevocably abide by the terms of the contract. It is founded on an act of trust with full faith to facilitate free grow of trade and commerce in internal or international trade or business. It, like a letter of credit, creates an irrevocable obligation to perform the contract in terms thereof. A bank must honour a bank guarantee free from interference by the Courts otherwise trust of any commerce, internal and international, would be irreparably damaged. If a bank guarantee is un-conditional and irrevocable, the bank concerned must pay when demand is made unless the bank has pledged its own credit involving its reputation. Generally it has no defence except in case of fraud.

13. No doubt in some of the above cases, particularly decided by learned Single Judges of the High Court of Sindh, the condition to furnish a bank guarantee or any other security for the entire amount or part thereof in respect of the letter of credit involved was imposed but from the facts of the case it appears that prima facie the Court found an element of fraud or the breach of the terms of the letter of credit. The above cases have no application to the case in hand.The upshot of the above discussion is that the appeal is dismissed, with no order as to costs.