ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeals Nos.805, 806 and 807 of 2022 &

Criminal Appeals Nos.08, 09, 10 and 20 of 2023

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Khadim Hussain Tunio

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Criminal Appeal No.805/2022 Mangal Das Arwani through Mr. Amer Raza Naqvi, advocate

Criminal Appeal No.806/2022 Mangal Das Arwani through M/s Amer Raza Naqvi & Syed Haider Imam Rizvi, advocates

Criminal Appeal No.807/2022 Mangal Das Arwani through M/s Shahab Sarki & A. Rashid Rajar, advocates

Criminal Appeal No.08/2023 Mohal Lal through M/s Muhammad Ashraf Kazi, Irshad Ahmed Jatoi and Imtiaz Ali Jatoi, advocates

Criminal Appeal No.09/2023 Mohal Lal through M/s Muhammad Ashraf Kazi , Irshad Ahmed Jatoi and Imtiaz Ali Jatoi

Criminal Appeal No.10/2023 Mohal Lal through M/s Muhammad Ashraf Kazi , Irshad Ahmed Jatoi and Imtiaz Ali Jatoi

Criminal Appeal No.20/2023 Syed Muhammad Raza Shah through Mr. Khadim Hussain Thahim, advocate

Respondents: The State through Mr. Muhammad Ahmed, Assistant Attorney General

Mr. Hassan, advocate, holds brief on behalf Dr. Shahab Imam, advocate for Trading Corporation of Pakistan

Date of Hearing : 05.03.2024

Date of Judgment : 05.03.2024

JUDGMENT

NAIMATULLAH PHULPOTO, J.-- By this common judgment, we intend to decide Criminal Appeals Nos.805, 806, 807 of 2022 and 08, 09, 10 and 20 of 2023.

2. Criminal Appeals 805/2022, 08/2023 and 20/2023 are filed against judgment dated 17.12.2022, passed in Case No.27/2015 by learned Judge, Special Court (Offences in Banks) Sindh at Karachi, whereby appellants Mangal Das Arwani, Mohan Lal and Syed Muhammad Raza Shah were convicted and sentenced as under:

(a) Accused Mohan Lal committed the offence being public servant while serving as Assistant Manager in Trading Corporation of Pakistan (Pvt.) Ltd., therefore, he is convicted under Section 409/34 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 and sentenced to R.1. for Fourteen (14) Years and is also fined to Rupees Ten Million (Rs. 10,000,000/-). In case of default of payment of fine, the accused shall suffer R.1. for Five (5) Years more. The imposition of fine on accused is in the light of Sub Section (3) of Section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. FFENC

(b) Accused Syed Muhammad Raza Shah and Mangal Das are also convicted under Section 109/34 PPC read with Section 409 PPC and are sentenced to suffer R.I. for Fourteen (14) Years and are also fined to Rs.Ten Million Cash (Rs.10,000,000/- each). In case of non- payment of fine, accused shall suffer R.I for further Five (5) Years.

(c) Accused Mohan Lal, Syed Muhammad Raza Shah and Mangal Das are convicted under Section 420 PPC read with Section 34 PPC and are sentenced to suffer R.I for Seven (7) Years and are also fined to Rupees Five Lacs each (Rs.500,000/- each). In case of non-payment of fine, accused shall suffer R.I for further Three (3) Years.

(d) Accused Mohan Lal, Syed Muhammad Raza Shah and Mangal Das are also convicted under Section 468 PPC read with Section 34 PPC and sentenced to suffer R.I for Five (5) Years and are fined to Rupees Three Lacs each (Rs. 300,000/- each). In case of non-payment of fine, accused shall suffer R.1 for further Two (2) Years.

(e) Accused Mohan Lal, Syed Muhammad Raza Shah and Mangal Das are convicted under Section 471 PPC read with Section 34 PPC and sentenced to suffer R.I for Three (3) 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.

f) All above named accused shall be entitled for the benefit of Section 382(B) Cr.PC. All the sentences awarded to accused shall run concurrently.

3. Criminal Appeals 806/2022 and 09/2023 are filed against judgment dated 17.12.2022, passed in Case No.53/2015, by learned Judge, Special Court (Offences in Banks) Sindh at Karachi, whereby appellants Mohan Lal and Mangal Das Arwani were convicted and sentenced as under:

(a) Accused Mohan Lal committed the offence being public servant while serving as Assistant Manager in Trading Corporation of Pakistan (Pvt.) Ltd., therefore, he is convicted under Section 409/34 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for Fourteen (14) Years and is also fined to Rupees Twenty Million (Rs.20,000,000/-). In case of default of payment of fine, the accused shall suffer R.I. for Five (5) Years more. The imposition of fine on 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 Mangal Das is also convicted under Section 109/34 PPC read with Section 409 PPC and are sentenced to suffer R.1. for Fourteen (14) Years and is also fined to Rs.Twenty Million (Rs.20,000,000/-). In case of non-payment of fine, accused shall suffer R.I for further Five (5) Years

(c) Accused Mohan Lal and Mangal Das are convicted under Section 420 PPC read with Section 34 PPC and are sentenced to suffer R.1 for Seven (7) Years and are also fined to Rupees Five Lacs each (Rs.500,000/- each). In case of non-payment of fine, accused shall suffer R.1. for further Three (3) Years.

(d) Accused Mohan Lal and Mangal Das are also convicted under Section 468 PPC read with Section 34 PPC and sentenced to suffer R.I for Five (5) Years and are fined to Rupees Three Lacs each (Rs. 300,000/- each). In case of non-payment of fine, accused shall suffer R.1 for further Two (2) Years.

(e) Accused Mohan Lal and Mangal Das are convicted under Section 471 PPC read with Section 34 PPC and sentenced to suffer R.I for Three (3) 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.1 for One (1) Year more.

(f) Both the above named accused shall be entitled for the benefit of Section 382(B) Cr.P.C. All the sentences awarded to accused shall run concurrently.

4. Criminal Appeals Nos.807/2022 and 10/2023, are filed against judgment dated 17.12.2022, passed in Case No.59/2015, by learned Judge, Special Court (Offences in Banks) Sindh at Karachi, whereby appellants Mohan Lal and Mangal Das Arwani were convicted and sentenced as under:

(a) Accused Mohan Lal committed the offence being public servant while serving as Assistant Manager in Trading Corporation of Pakistan (Pvt.) Ltd., therefore, he is convicted under Section 409/34 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for Fourteen (14) Years and is also fined to Rupees Twenty Million (Rs.20,000,000/-). In case of default of payment of fine, the accused shall suffer R.I. for Five (5) Years more. The imposition of fine on accused is in the light of Sub Section (3) of Section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984.

(f) Both the above named accused shall be entitled for the benefit of Section 382(B) Cr.P.C. All the sentences awarded to accused shall run concurrently.

5. Learned advocate for the appellants mainly argued that all the appeals are connected to each other as offences were committed in same transaction and all cases require same appreciation of evidence. However, during the course arguments, Mr. Amer Raza Naqvi, advocate for the appellants in Criminal Appeal No.805/2022, pointed out that examination-in-chief of PW-13 Irfan Ahmed was recorded by the trial Court at Ex.33, he produced cheques at Ex.13/A to 13/A/3, but cross-examination of PW-13 Irfan Ahmed was reserved on written application moved by appellant/accused Mangal Das Arwani. Thereafter, PW-13 Irfan Ahmed was not re-called by the trial Court for cross-examination by appellant Mangal Das Arwani or his counsel but trial Court closed the prosecution side and statements of accused were recorded under Section 342, Cr.PC. Thereafter, conviction was recorded against appellants Mangal Das Arwani and others. It is argued that illegality committed by the trial Court in conducting trial is not curable under the law. Learned advocate for appellants further argued that learned Judge, Special Court (Offences in Banks) Sindh, Karachi lacked jurisdiction in the matter, despite that judgment has been passed and it was coram non judice and prayed that the conviction and sentence may be set aside and the case may be remanded back to the trial Court for cross-examination of PW-13 Irfan Ahmed and recording statements of accused under section 342, Cr.PC afresh and deciding all the cases on merits while considering the point of jurisdiction.

6. It is matter of record that evidence of PW-13 Irfan Ahmed was recorded by trial Court on 09.03.2020 but his cross-examination was reserved on written request submitted by accused Mangal Das Arwani. Prosecution side was closed on 09.02.2021, without recalling PW-13 Irfan Ahmed for his cross-examination by the defence counsel. Thereafter, trial convicted and sentenced the appellants above named. Learned trial Court has committed illegality by not recalling PW-13 Irfan Ahmed for his cross-examination and such illegality is not cureable under the law. Moreover, learned advocates for the appellants jointly submitted that point of jurisdiction was raised before the trial Court but it was not decided by the trial Court and prayer has been made for remand of the case. Assistant Attorney General recorded no objection.

7. In the view of above, conviction and sentence recorded by the trial Court in the aforesaid cases vide judgment 17.12.2022 are set aside. Cases are remanded back to the trial Court for recalling PW.13 Irfan Ahmed in Case No.27/2015 for his cross-examination. Thereafter, statement of accused Mangal Das Arwani, Mohal Lal and Syed Muhammad Raza Shah shall be recorded afresh in accordance with law. Trial Court, after hearing the learned counsel for the parties, shall decide all the cases afresh, while recording the finding on the point of jurisdiction also. It may be observed that cases are old of 2015, trial Court is directed to decide the cases within two months under intimation to this Court through MIT-II.

8. At this stage, some of the advocates for appellants/accused pointed out that some accused were on bail during trial and prayed for extending them concession of bail. Since the cases are remanded back to the trial Court, accused will be at liberty to apply for bail before the trial Court, the same shall be decided by the trial Court strictly in accordance with law. The trial Court is directed to issue P.O. for accused Mangal Das Arwani on the date of recording the cross-examination of PW.13 Irfan Ahmed and recording of statement of accused under section 342, Cr.PC afresh.

The appeals are disposed of in the above terms.

J U D G E

Gulsher/PS