IN THE HIGH COURT OF SINDH, AT KARACHI

PRESENT:-

Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi.

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Criminal Appeal No.650 of 2022

Mst. Humaira Shafiq daughter of

Iqbal Shafiq. … … Appellant

Versus

The State. … … Respondent

Criminal Appeal No.663 of 2022

Sohail Ahmed son of Muhammad

Shabaan Soomro. … … Appellant

Versus

The State. … … Respondent

Criminal Appeal No.777 of 2022

Ahmer Zia son of

Muhammad Ziauddin. … … Appellant

Versus

The State. … … Respondent

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M/s Mahmood A. Qureshi & Jamal Iqbal, Advocates for Mst. Humaira Shafiq.

Mr. Javed Qazi, Advocate, Advocate for Sohail Ahmed.

Mr. Nadeem Ahmed Pirzada, Advocate for Ahmer Zia.

Mr. Ghulam Ali Khan, Advocate for complainant (Soneri Bank).

Mr. Ghulam Sarwar Baloch, DAG a/w I.O. Ms. Faryal Abida.

Dates of hearing 07.02.2023, 13.02.2023, 02.03.2023, 07.03.2023,

08.03.2023 and 09.03.2023

Date of announcement

of judgment 17.03.2023

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JUDGMENT

Shamsuddin Abbasi, J:- Mst. Humaira Shafiq, Sohail Ahmed and Ahmer Zia, appellants, were tried by learned Special Court, (Offences in Banks) Sindh, at Karachi, in Case No.62 of 2015 for offences under Sections 409, 468, 471, 109 and 34, PPC. By a judgment dated 31.10.2022 they were convicted and sentenced as follows:-

a) Accused Ahmer Zia and Mst. Humaira Shafiq are convicted under Section 409 PPC read with Section 34 PPC and sentenced to suffer R.I. for Ten (10) Years and are also fined to Rupees Seventy Five Lacs each (Rs.7,500,000/- each). In case of default of payment of fine, accused shall suffer R.I. for Three (3) Years more. The imposition of fine on oath accused is in the light of Sub-Section (3) of Section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984.

b) Accused Ahmer Zia, Mst. Humaira Shafiq and Sohail Ahmed are convicted under Section 468 PPC read with Section 34 PPC and sentenced to suffer R.I. for Seven (7) Years and are fined to Rupees Five Lacs each (Rs.500,000/- each). In case of non-payment of fine, accused shall suffer further R.I. for further Two (2) Years.

c) Accused Ahmer Zia, Mst. Humaira Shafiq and Sohail Ahmed are convicted under Section 471 PPC read with Section 34 PPC and sentenced to suffer R.I. for Two (2) Years and are also fined to Rupees Two Lacs each (Rs.200,000/- each). In case of non-payment of fine, accused shall suffer further R.I. for One (1) Year more.

d) Accused Ahmer Zia, Mst. Humaira Shafiq and Sohail Ahmed are also convicted under Section 109 PPC and sentenced to suffer R.I. for Seven (7) Years and are also fined to Rupees Two Lacs each (Rs.200,000/- each). In case of non-payment of fine, accused shall suffer further R.I. for One (1) Year more.

e) All above named accused shall be entitled for the benefit of Section 382(B) Cr.P.C.

f) All the sentences shall run concurrently.

2. Pursuant to a complaint made by Mrs. Javeria Tahir, Branch Manager, Soneri Bank, Zamzama Branch, DHA, Karachi, an enquiry No.03 of 2015 dated 06.01.2015 was initiated followed by an investigation, whereby a case (FIR No.54 of 2015) was registered at P.S. FIA (CBC), Karachi, for offences under Sections 409, 468, 471, 109 and 34, PPC. Complainant Mrs. Javeria Tahir has alleged that on 14.10.2014 Sumsamuddin Shah, BOM Zamzama Branch, Karachi, received a letter through e-mail from Branch customer(s) Shireen Aslam Ghaloo and Ahmed Mudassar, holding joint Account No.010-21690332, complaining less balance in their joint account. In response to such complaint, the bank sent statement of account from 01.06.2014 to 13.10.2014 to customer(s), who noticed that unauthorized transactions have been made from their joint account through cheques. The customers also claimed that they reside in U.K. and never used online banking through cheque book, issued at the time of opening of account bearing serial No.10550066 to 10550090, which is still with them and they never applied for another cheque book and the Branch Managers were fully aware of the fact that they reside in U.K. and used to communicate with the Branch Manager through email or telephone since June 2012, no communication was made by them. The FIR further disclosed that appellant Ahmer Zia, Branch Manager, had resigned during the period when cheque book was issued and no update was given to the customers in respect of their joint account despite their request. The customers noticed sixteen unauthorized withdrawals from 06.06.2014 to 10.07.2014 through counter transactions and online withdrawal aggregating an amount of Rs.7,573,000/- and claimed profit @ 9% from May onward and WHT with SMS charges and duplicate statement of account charges totaling Rs.30,362/- and also disowned cheque withdrawal (counter and online withdrawal) from 01.06.2014 to 13.10.2014. It was, thus, established that Ahmer Zia son of Muhammad Ziauddin Qureshi, the then Branch Manager, Soneri Bank Ltd, Zamzama Branch, DHA, Karachi, in connivance with Sohail Ahmed, the then Branch Operation Manager, Askari Bank Ltd, Khayaban-e-Bukhari Branch, Karachi, fraudulently withdrew an amount of Rs.7,573,000/- from joint account of Shireen Aslam Ghaloo/Ahmed Mudasir, maintained at Soneri Bank Ltd, Zamzama Branch, DHA, Karachi. It is further alleged that Sohail Ahmed got issued SIM No.0336-3296142 from M/s Noman Communications, main Khayaban-e-Bukhari, Phase-VI, DHA, Karachi, in the name of account holder Ahmed Mudassar and got it updated in the system through Humaira Shafiq, Ex-Counter Service Officer (Ex-CSO) in order to receive Call Back Communication (CBC) /Message. It was further established that Ahmer Zia managed a new cheque book from serial number 13468241 to 13468290, in connivance with branch staff and Ex-CSO Humaira Shafiq, who processed and issued new cheque book in violation of bank policies and procedures, and some of the forged cheques were used for purchase of foreign currency from M/s Galaxy Exchange Company, Zamzama Branch, DHA, Karachi, and M/s Paracha Exchange Company, Badar Commercial Branch, DHA, Karachi.

3. Pursuant to the registration of FIR, the investigation followed and in due course the challan was submitted before the Court of competent jurisdiction under the above-referred Sections, whereby the appellants were sent-up to face the trial.

4. A charge in respect of offences under Sections 409, 468, 471, 109 and 34, PPC was framed against appellants. They pleaded not guilty to the charged offence and claimed to be tried.

5. At trial, the prosecution has examined as many as sixteen (16) witnesses namely, Complainant Javeria Tahir appeared as witness No.1 Ex.5, Inspector Abdur Rauf Shaikh as witness No.2 Ex.6, Faizan Muhammad Khan as witness No.3 Ex.9, Sohail Akram as witness No.4 Ex.10, Kamal Aslam Siddiqui as witness No.5 Ex.11, Nizar as witness No.6 Ex.12, Irfan Ali Khan as witness No.7 Ex.13, Salman as witness No.8 Ex.14, Naveed Umer as witness No.9 Ex.15, Syed Fahad Mubarak Ali as witness No.10 Ex.16, Shakeel Ahmed Jamali as witness No.11 Ex.17, Shahnawaz as witness No.12 Ex.18, Sifat Wali as witness No.13 Ex.20, Abid as witness No.14 Ex.21, Sumsamuddin as witness No.15 Ex.23 and investigating officer AD FIA Ali Murad as witness No.16 Ex.24. Complainant Javeria Tahir and Abdur Rauf Shaikh again examined as witness No.17 and witness No.18 at Ex.29 and Ex.30 respectively.

6. Appellants were examined under Section 342, Cr.P.C. They denied the allegations imputed upon them by the prosecution, professed their innocence and claimed their false implication in this case. They opted not to make a statement on Oath under Section 340(2), Cr.P.C. in disproof of prosecution allegations and did not produce any witness in their defence.

7. Upon completion of trial, the learned trial Court found the appellants guilty of the offences charged with and, thus, convicted and sentenced them in the manner as detailed in para-1 (supra), which necessitated the filing of the listed appeals, which are being disposed of together through this single judgment as same appreciation of evidence is required.

8. The learned counsel for appellant Mst. Humaira Shafiq has argued that it is a case of clear discrimination as disputed forms A and B were also signed by BOM Sumsamuddin as such he was equally responsible to be joined in investigation, but the investigating officer cited him as witness rather to array him as accused and only the appellant has been made victim of the case. Per learned counsel, the appellant performed her duty and the prosecution has failed to prove mens rea on her part. It is next submitted that prosecution has not examined handwriting expert to substantiate that disputed documents bear signatures of account holder. It is also submitted that the learned trial Court based conviction on the enquiry report issued by the auditors, who have not been examined by the prosecution, hence such a report cannot be considered as convincing piece of evidence and conviction and sentence based on such report is against Articles 140 and 151 of Qanun-e-Shahadat Order, 1984. In support of his submissions, he has relied upon the case of Land Acquisition Controller & another v Muhammad Sultan and another (PLD 2014 SC 696) and Muhammad Ilyas v Shahid Ullah and others (PLD 2009 Supreme Court 446)

9. The learned counsel for appellant Sohail Ahmed has argued that he never served in Soneri Bank and his involvement in the case is based on malafide and dishonest intention, he has no nexus with the alleged offence. It is next submitted that the only allegation against him was that he had obtained SIM from PW.4 Sohail Akram, which was used in the commission of offence. It is also submitted that prosecution evidence brought on record against him was without documentary proof and conviction and sentences awarded to him were unjustified.

10. The learned counsel for appellant Ahmer Zia has argued that the offence related to 01.06.2014 to 13.10.2014 and he was on leave from 15.05.2014 to 10.10.2014 and after availing leave he had resigned from the post of Manager Relation, hence he is not responsible for operational activities of bank, that he had not signed any document and his conviction was without evidence. The learned counsel has submitted that appellant has been involved at the instance of PW.15 Sumsamuddin, who was solely responsible for all acts in bank, who after joining hands with investigating officer has concocted a false and fabricated story and involved the appellant in a false case. He has relied upon the case of Syed Shafqat Ali Qadri v The State (2017 MLD 1042).

11. In addition to the above submissions, the learned counsels appearing on behalf of the appellants have jointly contended that the appellants are innocent and have been falsely implicated in this case and have been made victim of the circumstances; that the prosecution has failed to discharge its legal obligation of proving the guilt of the appellants as per settled law; that the witnesses have contradicted on crucial points benefit whereof must go to the appellants; that the prosecution failed to examine joint account holder namely Shireen Aslam Ghaloo and Ahmed Mudassar without furnishing any plausible explanation; that all incriminating evidence was not put to the appellants while recording their Section 342, Cr.P.C. statements; that the impugned judgment is bad in law and facts and based on assumptions and presumptions without assigning any valid and cogent reasons; that the learned trial Court while passing the impugned judgment has deviated from the settled principle of law that a slightest doubt is sufficient to extend acquittal to an accused.

12. Strongly opposing the submissions raised by the learned counsel for the appellants, the learned DAG, assistant by learned counsel for the complainant, has submitted that FIR has been lodged after an internal enquiry wherein the appellants were found responsible for illegal withdrawals through fraudulent transaction. The prosecution in support of its case has examined sixteen witnesses, who appeared before the learned trial Court, they remained consistent on each and every material point; that they were subjected to lengthy cross-examination but nothing adverse to the prosecution story has been extracted which can provide any help to the appellants. No evidence of enmity in terms of malafide or ulterior motive has been brought on record by the appellants, which might have actuated the complainant and the witnesses to falsely implicate the appellants in the commission of offence. The witnesses are bank officials and there is no reason to disbelieve their evidence, which is consistent and confidence inspiring, duly supported by documentary evidence; that the role of the appellants is borne out from the evidence adduced by the prosecution and documents brought on record; that the findings recorded by the learned trial Court in the impugned judgment are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. It is further argued that the pleas taken by the appellants with regard to their false implication did not carry weight and rightly disbelieved by the trial Court; that the appellants neither appeared on Oath nor produce any witness in defence to substantiate their innocence; that the prosecution has successfully proved its case against the appellants beyond shadow of any reasonable doubt, thus, the appeals, filed by the appellants warrant dismissal and their conviction and sentences recorded by the learned trial Court are liable to be maintained. They, however, admitted that sentence awarded to Humaira Shafiq is harsh and recorded their no objection if the same is reduced to some reasonable extent. In support, they have relied upon the cases of Mst. Adeeba Khan v The State through FIA (2002 MLD 496), Muhammad Haseeb Khan and another v The State through FIA CBC, Karachi (2012 P.Cr.L.J. 1, Farooq Arshad v The State and another (2011 P.Cr.L.J. 493), , A. Habib Ahmed v M.K.G. Scott Christian and 5 others (PLD 1992 Supreme Court 353) and Manager, Muslim Commercial Bank v Muhammad Aslam Awan (PLJ 1987 Cr.C. (Special Court) 524.

13. We have heard the learned counsel for the parties, given our anxious consideration to their submissions and also gone through the entire material on record carefully with their able assistance.

14. From perusal of evidence, it transpired that Mrs. Javeria Tahir, Branch Manager, Soneri Bank Ltd, Zamzama Branch, DHA, Karachi, reported the matter to FIA, CBC, Karachi, complaining 16 unauthorized transactions alleged to having been made from joint A/c No.010-21690332, maintained by Shireen Aslam Ghaloo & Ahmed Mudassar, with effect from 06.06.2014 to 10.07.2014 through counter transactions and online withdrawals aggregating an amount of Rs.7,573,000/-. The account holders disowned such withdrawals and claimed that they stayed in U.K. and never withdrawn any amount from their account. An enquiry was conducted wherein it was found that Ahmer Zia, the then Branch Manager, Soneri Bank Ltd., Zamzama Branch, DHA, Karachi, illegally withdrew Rs.7,573,000/- from the said account through counter transactions and online withdrawals. He was facilitated by Sohail Ahmed, the then Branch Operation Manager, Askari Bank Ltd, Khayaban-e-Bukhari Branch, Karachi, who got obtained SIM No.0336-3296142 from M/s Noman Communications, Main Khayaban-e-Bukhari, Phase-VI, DHA, Karachi, in the name of account holder “Ahmed Mudassar”, which was updated in the system through Humaira Shafiq, Ex-Counter Service Officer (CSO), who on the directions of Ahmer Zia issued a new cheque book from serial No.13468241 to 13468290 in violation of bank policies and procedures and later on some of the cheques were used for withdrawal of funds through counter cash withdrawal and online withdrawal transactions for purchasing foreign currencies of different denominations from M/s Galaxy Exchange Company, Zamzama Branch, DHA, Karachi and M/s Paracha Exchange Company, Badar Commercial Branch, DHA, Karachi.

15. A keen look of the testimony of prosecution witnesses reveals that Ahmer Zia was the Branch Manager of Soneri Bank, Zamzama Branch, Karachi, who managed to issue a new cheque book in respect of joint account of Shireen Aslam Ghaloo/Ahmed Mudassar, who reside in U.K. through Humaira Shafiq, who acted on verbal instructions of Ahmer Zia and processed the application for issuance of new cheque book in violation of bank policies and rules and handed over the same to an unauthorized person whose CNIC number does not exist in the record of NADRA, which shows her criminal intent. The record is also suggestive of the fact that signature on form B does not match with the signature of account holder(s) and this position has been affirmed by handwriting expert in his report. They were facilitated by Sohail Ahmed, who fraudulently obtained SIM from PW.4 Sohail Akram in the name of account holder Ahmed Mudassar providing photocopy of his CNIC with criminal intent for commission of bank fraud. The appellants, thus, in connivance with each other withdrew an amount of Rs.7,573,000 through unauthorized transactions. We are also conscious of the fact that PW.4 Sohail Akram appeared before the learned Magistrate and got recorded his statement under Section 164, Cr.P.C., stating therein that after obtaining SIM Sohail Ahmed asked him not to tell anything about issuance of SIM rather suggested not to disclose his name to anyone. He has also produced one video recording containing admission of Sohail Ahmed with regard to obtaining SIM from Noman Communication. Record further reveals that during investigation, the I.O. collected Call Data Record (CDR) of SIM No.0336-3296142, which shows calls were received on 10.06.2014, 13.06.2014, 09.07.2014 and 10.07.2014 from phone number 021-35393436, which belongs to Ahmer’s branch. This aspect of the matter has further strengthened the case of the prosecution. The prosecution has also been able to prove that after clearing the disputed cheques through due process of CBC on a fraudulent and changed cell number, they purchased foreign currency from money changers and this fact has been testified by PW.9 Naveed Umer, Manager Galaxy Exchange and PW.10 Syed Fahad Mubarak Ali, Manager Mubarak Enterprises, Franchise of Paracha Money Exchange. They have exhibited certain documents in their evidence showing purchase of foreign currency from their office. PW.14 Abid, who is serving as rider of M/s Galaxy Currency Exchange Company in his evidence has categorically involved Ahmer Zia by deposing that Ahmer Zia handed over him two cheques totaling Rs.770,000/- and after encashment he delivered foreign currency of equivalent value to Ahmer Zia. Act played by the appellants, who are bankers, shows that they have misappropriated the amount of customers and withdrew amount from joint account fraudulently.

16. The prosecution witnesses remained consistent on each and every material point despite having undergone a lengthy cross-examination by the defence. Nothing has been extracted from their mouth during cross-examination. Their evidence has extended adequate confidence to the learned trial Court to be believed upon them and we have also acknowledged the quality of their truthfulness to believe them as dependable witnesses. The defence has failed to point out any malafide or ill-will on their part for false implication of appellants. We are, thus, of the view that all the pieces of evidence produced by the prosecution against appellants are worthy of reliance to prove alleged offence against them and are sufficient to base conviction. The oral evidence furnished by the prosecution has been supported by documentary evidence. Most of the witnesses produced by the prosecution including complainant are bank officials and they have deposed full account of the incident and specifically involved the appellants in the commission of crime. The prosecution, in our considered opinion, has led trustworthy evidence to prove the charges of fraud, forgery, criminal breach of trust, preparation of forged documents, obtaining a SIM through fraud and unauthorized withdrawals embezzling an amount of Rs.7,573,000 from joint of Shireen Aslam Ghaloo/Ahmed Mudassar, maintained at Soneri Bank Limited, Zamzama Branch, DHA, Karachi. The appellants while recording their statements under Section 342, Cr.P.C. have neither discredited the prosecution evidence nor placed on record any convincing evidence to substantiate their plea of false implication. In the circumstances, since no specific plea has been taken by the appellants, the learned trial Court has rightly discarded the same to be of untrustworthy. The appellants being bankers were custodian of public money, but they committed fraud, forgery, fabrication and broken the trust of customers for personal gain and deprived them of a huge amount through counter transactions and online withdrawals illegally and unauthorizedly.

17. The contention raised by the defence that account holders have not been examined, they were at U.K. Prosecution case is based upon documentary evidence. Non-examination of account holder namely, Shireen Aslam Ghaloo and Ahmed Mudassar will not be fatal to the case of prosecution. The last contention that appellants have been involved on account of departmental rivalry is concerned, we are conscious of the fact that enquiry was conducted on the complaint of customer Ahmed Mudassar, who noticed less balance in his joint account, which led to initiation of an enquiry followed by an investigation wherein the appellants were found responsible for commission of offences charged with. This contention of defence is, thus, devoid of merit.

18. The learned trial Court after scrutinizing the material available on record found the appellants guilty of the offences with which they have been charged, hence convicted and sentenced them. After re-examination of evidence, we hold that the learned trial Court has rightly held the prosecution evidence as reliable and trustworthy.

19. In view of re-examination of entire evidence with care and caution, we are of the considered view that the prosecution has successfully proved its’ case against appellants beyond any shadow of doubt. The learned advocates appearing on behalf of the appellants have also failed to point out any material illegality or infirmity in impugned judgment, which in our view is based on fair evaluation of evidence and documents brought on record. Resultantly, the appeals insofar as it impugn conviction, are dismissed on merits. However, keeping in view the fact that the appellants are first offenders and suffered loss of their jobs, we deem it appropriate to reduce the sentences awarded to appellants. Accordingly, the conviction and sentence awarded to Ahmer Zia under Section 409/109 PPC is reduced from 10 years R.I. to 05 years R.I and sentence of Mst. Humaira Shafiq under section 409/109 PPC is reduced to 03 years R.I. while fine of Rs.7,500,000/- each and sentences awarded in lieu of fine are maintained. The conviction and sentences awarded to appellant Mst. Humaira Shafiq under Sections 468/109, PPC are also reduced from 07 years R.I. to 03 years R.I. while the conviction and sentences awarded to appellants Ahmer Zia and Sohail Ahmed are reduced from 07 years R.I. each to 05 years R.I. each. Fines of Rs.500,000/- and Rs.200,000/- each and sentences awarded in lieu of fines are maintained. The other conviction and sentences awarded to appellants Ahmer Zia, Mst. Humaira Shafiq and Sohail Ahmed under Sections 471, PPC are maintained. All the above sentences shall run concurrently. Appellants shall be entitled to the benefit of Section 382(b), Cr.P.C.

20. Above appeals are disposed of in the foregoing terms.

JUDGE

JUDGE

NAK/PA