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 banks staff did not identify him to be the
same Abdul Jabbar who had opened the said account.
The banks 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