HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.598 of 2022

                        Present:         

                                        Naimatullah Phulpoto, J.

                                        Amjad Ali Sahito, J

 

Appellant:                             Raza Hussain through Mr. Rizwan Ali Dodani, Advocate

                                               

Respondent:                          The State through Mr. Peer Riaz Muhammad Shah, D.A.G.

 

Complainant:                        through Mr. Kashif Hanif, advocate

 

Date of hearing:                    02/11/2023

Date of announcement:       02/11/2023

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J:- Appellant Raza Hussain son of Zawar Hussain was tried by learned Judge, Special Court (Offences in Banks) Sindh at Karachi in Case No.27 of 2014, arising out of FIR No.20/2014 for offences under sections 409, 420, 468, 471, 477-A, 109, 34, PPC of P.S. FIA (CBC), Karachi. After regular trial, vide judgment dated 16.09.2022, appellant Raza Hussain was convicted under section 245(2), Cr.PC and sentenced as under:

 

a) Accused is convicted under Section 409 PPC and sentenced to suffer R.I for Ten (10) Years and is also fined to Rs.25,000,000/- (Rupees Twenty Five Million only). In case of default of payment of fine, he shall suffer R.I. for Three (3) Years more. The imposition of fine on accused Raza Hussain is in the light of Sub Section (3) of Section 6 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984.

 

b) Accused Raza Hussain is also convicted under Section 420 PPC and sentenced to suffer R.I for Five (5) Years and is fined to Rs.500,000/ (Rupees Five Lacs only). In case of non-payment of fine, he will suffer further R.I for further Two (2) Years.

 

c) Accused named above is convicted under Section 468 PPC and sentenced to suffer R.1 for Five (5) Years and is fined to Rs.500,000/- (Rupees Five Lacs only). In case of non-payment of fine, he will suffer further R.I for further Two (2) Years.

 

d) Accused Raza Hussain is convicted under Section 471 PPC and sentenced to suffer R.I for Two (2) Years and is fined to Rs.200,000/- (Rupees Two Lacs only). In case of non-payment of fine, he will suffer further R.I for One (1) Year more.

 

e) Accused is convicted under Section 477-A PPC and sentenced to suffer R.I for Three (3) Years and is fined to Rs.300,000/- (Rupees Three Lacs only). In case of non-payment of fine, he will suffer further R.I for further Two (2) Years.

 

f) Accused Raza Hussain shall be entitled for the benefit of Section 382(b) Cr.P.C.

 

g) All the sentences shall run concurrently.

 

2.         Brief facts of the prosecution case as per FIR dated 19.03.2014 registered on the basis of a complaint dated 19.03.2014 moved by the complainant          Mst. Moni Faheem, Area Manager, Habib Bank Limited, are that an incident of misappropriation of cash through vouchers/cheques kept as a part of cash to the tune of Rs.24,595,910/- (so far detected) took place pertaining to HBL internal accounts as well as from customers’ accounts as per detail mentioned below:-

 

S. No.

Customer Name

Account No.

1.

Ali Mumtaz

08047900241003

2.

A. Majeed

08040026543803

3.

Sajjad Ahmed

08047900203703

4.

Faheemuddin

08047900217203

 

            It is further mentioned that during inquiry of the Bank, it came on record that appellant Raza Hussain (Operation Manager) HBL, Mansfield Branch, Karachi in connivance with aforementioned accountholders siphoned off bank’s cash through clearing cheques, which caused huge financial loss to the bank and corresponding gain to himself and his accomplice accountholders. It is also alleged in the FIR that above named Operation Manager had also admitted his guilt. Hence, this FIR was registered against nominated bank officials and the accountholders. After usual investigation, challan was submitted against accused persons.

 

3.         Trial Court framed charge against accused on 18.04.2016, to which they pleaded not guilty and claimed trial

.

4.         Prosecution examined 9 PWs. Thereafter, prosecution side was closed at Ex-19.  

 

5.         Statement of appellant and co-accused was recorded under section 342, Cr.PC at Exh-20 to 25, respectively wherein they denied the commission of offence and claimed their innocence.

 

6.         Learned trial Court after hearing the learned counsel for the parties and assessment of evidence convicted and sentenced the appellant as stated above whereas co-accused Allahuddin, Ali Mumtaz, Sajjad Ahmed, Zohaib and Faheemuddin were acquitted for want of evidence.

 

7.         Appellant being aggrieved and dis-satisfied by the judgment of conviction against him, filed this appeal, it was admitted to regular hearing, notices were issued to the D.A.G. as well as complainant.

 

8.         At the very outset, learned advocate for the appellant argued that learned Judge, Special Court (Offences in Banks) Sindh at Karachi conducted the trial in a hasty manner; recorded evidence of PWs 1 to 5 in absence of the defence counsel and a fair opportunity was not provided to the appellant for cross-examination of the prosecution witnesses. It is further argued that cross-examination is a valuable right of the appellant/accused and the appellant was deprived of such right and it is prayed that case may be remanded to the trial Court for providing a fair opportunity to the appellant to cross-examine the witnesses. Learned D.A.G. concedes to the contentions raised by the counsel for the appellant and submits that it is a fit case to remand the same to the trial Court for providing a fair opportunity to the appellant to cross-examine PWs 1 to 5.

 

9.         Mr. Kashif Hani, learned advocate for the complainant submits that opportunity was provided to appellant but he did not avail it and the delay would be caused in case the case is remanded back to the trial Court. He has opposed the prayer made by the advocate for the appellant for remand of the case to the trial Court.

 

10.       We have heard the learned counsel for the parties and re-examined the entire prosecution evidence. It appears that evidence of PWs 1 to 5 is very much essential for just decision of the case without cross-examination of PWs 1 to 5, this Court will not be able to reach at just conclusion. Even otherwise, in terms of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, a fair trial and due process is the right of appellant/accused. It appears that several documents have been produced by the prosecution witnesses, particularly by PW-1 but he was not cross-examined by accused. We have also observed that on the relevant dates, advocate for accused Raza Hussain was also not present in the Court. The trial Court should have adjourned the case for providing another opportunity to accused Raza Hussain, to produce his advocate before the trial Court and cross-examine the prosecution witnesses but it was not done. The manner in which the trial was conducted by the trial Court it appears that illegality has been committed and it is not curable under the law. Law also favours the adjudication of the cases on merits. Therefore, the judgment dated 16.09.2022 to the extent of appellant Raza Hussain is not sustainable under the law, the same is set aside and the case is remanded to the trial Court to the extent of appellant/accused Raza Hussain for cross-examination of PWs 1 to 5. After cross-examination, statement of accused shall be recorded afresh. The case is old one of 2014, trial Court is directed to conclude the trial preferably within two months, strictly in accordance with law.

 

            The instant appeal is disposed of in the above terms.

 

                                                                                                            J U D G E

                                                                                                           

                                                                                    J U D G E

 Gulsher/PS