IN THE HIGH COURT OF SINDH, KARACHI

Special Criminal Appeal No. 26 of 2017

 

 

Adeel Haneef Siddiqui..…...……………………..……………….….Appellant

Versus

The State…………………………………………………………....Respondent

 

Date of Hearing :-                27.08.2018

 

 

Mr. Muhammad Vawda, advocate for appellant

Mr. Ashiq Ali Anwer Rana, advocate for MCC Exports, Customs, Karachi

Mr. Muhammad Naeem Khan, Assistant Attorney General

 

O R D E R

 

 

Fahim Ahmed Siddiqui, J-: The appellant through the instant criminal appeal impugned the Order dated 03.06.2017 passed by the learned Special Judge (Customs & Taxation), in Special Case No. 07/2011, whereby the application under Section 265-K CrPC filed by the appellant was dismissed.

2.         The facts of the case are that an F.I.R. was lodged by complainant Khaled Omar, Officiating Principal Appraiser, MCC Exports, Karachi in relation to an alleged fiscal fraud. It was alleged in the said F.I.R. that some 78 GDs showing export of Leather Jacket (a rebatable export commodity) filed by the Customs Clearing Agent M/S Al-Maqsit Enterprises, Zoha Apparel, Z A Corporation, Skin Hard Leather and Start A one Enterprises were not physically available. It was apprehended that major fiscal fraud has been committed as the export against the aforementioned GDs involved a substantial amount of rebate. Therefore, the relevant data/record was obtained and upon scrutiny it transpired that the rebate claims of 7 GDs had been filed and an amount of Rs. 1.3 million had been obtained by the exporter M/S. Malik Enterprises, however, none of the consignments in relation to the aforementioned 7 GDs was passed in, examined and ship through any airline. Therefore, it was allegedly established that a fiscal fraud had been committed. Another 9 fraudulent rebate claims had been allegedly filed by M/S. Zoha Apparel and Malik Enterprises which were under process of being sanctioned, but were stopped due to aforementioned alleged fiscal fraud.

3.         After registration of the above F.I.R., investigation was carried out and an Interim Final Report was submitted before the Court of Special Judge (Customs and Taxation) and subsequently after completing the investigation, the Supplementary Final Report was submitted in which the name of the appellant appeared first time. As per contents of the Final Report, the bank officials including appellant are involved with the main accused persons as they facilitated them by opening bogus account. The specific allegation against the appellant is that he has processed the opening of account on the recommendation of one of his colleagues without physically interviewing the would-be account holder. The appellant has filed an application under Section 265-K, which was declined, hence, the instant special criminal appeal was filed.

4.         Mr. Muhammad Vawda, advocate, while arguing the case on behalf of appellant, submits that the appellant is innocent and he has been falsely and unnecessarily dragged in the instant case. He submits that the appellant is a bank employee and his name is not there in F.I.R. even his name was missing in the interim charge sheet. According to him, the name of the appellant is also missing in supplementary charge sheet which was furnished after completing investigation. He submits that the name of the appellant is abruptly appeared in the second supplementary charge sheet without any reason. He submits that when after completing investigation, the charge sheet is submitted then there was no reason to submit a second supplementary charge sheet. He submits that the name of appellant is also missing from the statement of complainant recorded during the course of investigation. According to him, the only allegation against the appellant is processing of an account without interviewing the account holder. He submits that opening an account without interviewing the account holder is not an offence, and if said account is used for any criminal act then the appellant is not responsible for the same. He points out that the said account was opened in the year 2010 and after opening that account, the appellant remained in service with the same bank for a considerable period of time and even after registration of this case. He submits that by opening such an account, the appellant has not violated any rules and regulations as no disciplinary proceeding was initiated against the appellant. According to him, the appellant is having an unblemished service record, which is clear from the fact that after the incident, the appellant remained in service with M/s. Bank Al-Falah from where he switched to another bank (Allied Bank Ltd) in a better position after resigning from Bank Al-Falah in the year 2012. The learned counsel for the appellant categorically states that during his stay with Bank Al-Falah, never an explanation or show cause notice was issued from his previous employer regarding any fault, mishap or misdemeanor or even regarding opening of the account mentioned in the second final report (charge sheet). He submits that even from the contents of second final report (charge sheet), it is clear that there is no mens-rea or guilty mind in the act of opening an account, which was opened on the recommendation of one of his colleagues in the bank where he was previously employed. In the end, he submits that the learned trial court has wrongly dismissed the application filed by the appellant for his acquittal during trial. According to him, in the present scenario the charge against the appellant is baseless and there is no probability of conviction in the instant matter even after trial. He relies upon 2003 PCrLJ 1599.

5.         Mr. Ashiq Ali Anwer Rana, advocate for respondent (MCC Exports, Karachi) submits that the appellant is more than a facilitator to the main culprits in filing and getting bogus rebate claims, as such he cannot be exonerated at any cost. According to him, nowadays it is impossible to open a non-genuine account in a bank without a patronizing from bank employees. He submits that the role of appellant is mentioned in details within the body of charge sheet submitted against him. He submits that as per law recently developed, quashing a criminal case during trial is not appreciable; therefore, it would be appropriate that the appellant has to face trial and prove his innocence after a full-fledged trial. He submits that now one cannot avoid the trial only due to some technicalities or weakness in the prosecution case. According to him, it would be necessary that the prosecution should be given a chance to prove the allegations leveled against the appellant during trial. In support of his contentions, he relies on PLD 2013 Supreme Court 401, 2005 SCMR 1544, 2002 SCMR 634.

6.         The learned AAG adopted the arguments advanced by the learned counsel for the respondent organization (MCC Exports, Karachi).

7.         I have given anxious consideration to the above arguments and have scrutinized the relevant record in the light of able and valued submissions made before me. It is a factual position that the name of appellant is not only missing from the F.I.R. but it does not transpire in the initial Interim Final Report (interim charge sheet) and the same was also missing from the Supplementary Report placed before the trial court after completing investigation. However, the name of the appellant appears at serial # 7 in the second supplementary report furnished by the prosecution before the trial court. The reason for giving the name of appellant as an accused is mentioned in the summary of First Supplementary Report (charge sheet) as under:

“After submission of Interim Chargesheet No. SI/MISC/01/2011-EIB dated 06-02-2011 and a Supplementary Chargesheet-1, dated 14-03-2011 the investigations in respect of M/S Is skincare part Leather (bearing NTN # 3543734) were carried out. This transpired that a Bank Account No. 01875117, Industrial Area North Karachi branch of ‘Al-Falah Bank’ was being operated in the name of Mr Abdul Jabbar s/o Haji Abdul Razak, House No. 5, Momin Mohalla, Ward No. 2, Kot Ghulam Muhammad Town Committee, Post Office & Tehsil Kot Ghulam Muhammad, District Mirpurkhas. The said account holder Abdul Jabbar was called upon by sending a notice for the confirmation of his account and having a business with the name & style of M/S Skin Art Leather at Room No. 449, 4th Floor, Bhayani Shopping Centre, block ‘M’, North Nazimabad, Karachi. The said Abdul Jabbar joined the investigations and denied the running account with Al-Falah Bank, Industrial Area, North Karachi Branch. The said Abdul Jabbar further disclosed that while visiting Karachi in the recent past he had lost his CNIC and other documents in the vicinity of Block 13-D, Gulshan-e-Iqbal, Karachi. In support of his contention, Abdul Jabbar produced a police report dated 16-04-2008 registered at Aziz Bhatti Police Station, Gulshan-e-Iqbal, Karachi. In this process, the said Abdul Jabbar was also taken to the above said bank branch for identification by the bank officials who had opened the above-mentioned said account. The bank’s staff did not identify him to be the same Abdul Jabbar who had opened the said account. The bank’s staff did not identify him to be the same Abdul Jabbar who had opened the said account. Conversely, it was disclosed that one Muhammad Kashif Hussain s/o Muhammad Hussain, Business Development Officer (BDO), Nazimabad, Gol Market Branch of the Bank Al-Falah had brought the duly filled Application Form, which he handed over to Faisal Wahab s/o Wahab-ud-din, business development officer, Bank Al-Falah, Industrial Area, North Karachi Branch for opening of the above said account. Later on Muhammad Kashif Hussain, BDO of Bank Al-Falah, Nazimabad Gol Market Branch was required to explain his position in respect of above said circumstances. Although Muhammad Kashif could not come up with much satisfactory explanations, he disclosed that one Jahangir, resident of R-648, Sector-9, North Karachi (cell phone # 0300-2633829 (had brought account opening form along with the ID card in original in the name of Abdul Jabbar. Efforts were, therefore, made it to contact the said Jahangir Buckley did not join the investigation but went underground fearing his arrest. The extent of criminal involvement of Jahangir is still being probed into. In view of these developments Muhammad Kashif Hussain was arrested on 12-04-2011, to abet in opening of the above said fake account wilfully and knowingly. The involvement aspect of the bank officials is also being investigated to ascertain their criminal liabilities, especially as to how they opened a fake account merely at the behest of a Business Development Officer of another branch.”

 

8.         It is worth mentioning that although the name of the appellant is appeared in the First Supplementary Final Report (Charge sheet) but till that time the appellant was not made accused by the prosecution as his name was not appearing in the column of accused persons. However, another charge sheet i.e. Second Supplementary Final Report was furnished with nearly the similar summary. However, the specific allegations against the appellant and other bank officials are mentioned therein as under:

“The involvement aspect of the bank officials was also investigated to ascertain their criminal liabilities especially as to how they opened a fake account merely at the behest of a Business Development Officer of another branch. They could not properly justify the omission of procedure not adopted by them with respect to opening of fake accounts vis a vis identification of appellant.”

 

9.         From the above quoted portions of charge sheet, it is clear that the fault of the appellant is that he had open an account on the behest of one of his colleagues without personally seeing and interviewing the account holder.

10.       It is worth to mention that the incident was taken place at a time when biometric identification of an account holder was not necessary and it was considered sufficient to identify a person through an ID card. It is also worth mentioning that it is neither the requirement of banking procedure and law that an account holder should be physically seen and interviewed by each and every bank officer. The appellant is not the branch manager but he was only an officer of the bank, who is working in the same bank but in some other branch. The account was opened as a routine business of banking, which was prevailing at that time. It has been revealed by the investigating officer that when the person, in whose name the account was opened and operated, was brought in the bank for identification, the appellant and other officials refused to identify him as the person who has visited the bank at the time of opening of account. Meaning thereby that there was no criminal folly in the part of the appellant, as he had not involve an innocent person whose original ID card was placed before him at the time of opening the account. It is also worth mentioning that no action was taken against the appellant by the management of bank. The reason is obvious that no violation of Standard Operating Procedure (SOP) or rules was done by the appellant otherwise at least some disciplinary proceedings would have been initiated against him. The star culprit of the procedure of opening fake account i.e. Jahangir is missing while the bank officials have provided every detail about him including his cell phone number. As discussed above, no disciplinary proceeding was initiated against the appellant from his previous employer and after resigning from the previous bank, he is working in a better position in a reputable bank. If the applicable was responsible for any violation of banking norms and practices, being followed at that time, he would not be spared from the management of his previous organization and would not be welcomed in any other financial institution after the incident. This fact clearly indicates that there was no “mens-rea” or “mind to crime” while processing the account opening form in the name of Abdul-Jabbar merely on an introduction from another officer of the bank.

10.       Mr. Ashiq Ali Anwer Rana, advocate, while making his submissions, has pointed out that quashing of a criminal case is not appreciable due to development of law in the recent past. In this respect he has cited several case laws in which, according to him, it is held that instead of quashing a case u/s 249-A or 265-K CrPC, it would be appropriated to provide the prosecution a chance to establish their case by producing evidence. I have gone through the case laws cited and having profound respect for the learned counsel, I would say that I am unable to agree with him. No doubt, it is the rule of thumb of criminal law that ‘no offence should go unchecked and no offenders should go unpunished’ but it is also necessary that an innocent person should not be put under the wheel of criminal law without any fault. It is the reason that the legislature has equipped the courts with a mechanism ‘to nip the evil in the bud’ by invoking section 249-A or 265-K of the Code of Criminal Procedure. As far as cited case laws are concerned, the ratio as set in nearly all of them is that it is not appreciable to quash a criminal case under constitutional jurisdiction but to provide an opportunity to the trial Court to judge the entire scenario under the available record and to use the aforementioned provisions of pre-trial or during trial disposal of a criminal case. However, there will be no cavil about it that an order passed by the trial Court under Section 249-A or 265-K of the Code will be open for revision or appeal before this Court. In the instant case, the appellant has already approached the trial court with a prayer for pending trial acquittal, which was declined; hence the instant appeal was filed.

11.       The upshot of the above discussion is that whatever action done by the appellant for opening an account was done as per normal rules and Standard Operating Procedure (SOP) of banking prevailing at that time. The account was opened on the introduction of the officer of another branch of the same bank, which itself is not sufficient to hold the appellant criminally responsible besides it is the regular banking practice that bankers introduce their clients to another branch just to facilitate them. Hence, I am of the view that the act of the appellant is an unintentional act; and omission, if any, is also not established as prosecution could not produce anything regarding a disciplinary proceeding against him, as such, inclusion of appellant in the trial is actually a misuse of process of law. Hence the instant appeal was allowed through a short order dated 27-08-2018, whereby the appellant was acquitted and these are the reasons for the same.

 

                                                                                                            J U D G E