IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.106 of 2012

Present: Mr. Justice Ghulam Sarwar Korai

Mr. Justice Naimatullah Phulpoto

Appellant : Sarfaraz Ali Sangi through Mr. Muhammad Rafi, Advocate.

Respondent : The State through Mr. Muhammad Ashraf Mughal, D.A.G.

Date of hearing : 01.10.2013

Date of announcement : 09.10.2013

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellant Sarfaraz Ali Sangi was tried by the Special Court (Offences in Banks) Sindh at Karachi in Case No.38 of 2003 vide F.I.R. No.13/2003 of FIA, CBC, Karachi for offences under sections 409, 471, 477-A PPC read with section 5(2) PCA-II, 1947. On the conclusion of trial, the appellant was convicted under the above referred sections and was sentenced to 7 years R.I. and to pay the fine of Rs.37,72,658/-. In case of default in payment of fine, the appellant was ordered to further undergo SI for 21 months. Benefit of section 382-B Cr.PC was extended to him.

2. Brief facts of the prosecution case are that on receipt of additional information/complaint in respect of F.I.R. lodged against the appellant Sarfaraz Ali Sangi, OG-III, EMP No.412126 from Mr. Zulfiqar Ali Shaikh, Manager, UBL, Dokri Branch, Karachi vide complaint dated 03.04.2003, Inspector Ghulam Akbar Zardari lodged F.I.R. No.13/2013 on 07.04.2003 on behalf of the State against the accused, disclosing therein that accused Sarfaraz Ali Sangi in addition to the amount reported in earlier complaint has embezzled/pocketed the amounts and failed to credit in the accounts of respective account holders and subsequently he had withdrawn the cash through fake cheques from the customers’ accounts. The details of the cases/accounts detected have been mentioned in the F.I.R.

3. After usual investigation challan was submitted against the appellant Sarfaraz Ali Sangi under sections 409, 468, 471, 427-A PPC read with section 5(2) of PCA-II, 1947.

4. Trial Court framed charge against the appellants at Ex-8. The appellant met the charge with denial. In order to substantiate the charge, prosecution examined witnesses namely, PW-1 Zulfiqar Ali Shaikh Ex-10, PW-2 Ghulam Akber Zardari Ex-11, PW-3 Irshad Ali Ex-12, PW-4 Arbab Ali Chandio Ex-13, PW-5 Muhammad Siddique Ex-14, PW-6 Naley Mitho Ex-15, PW-7 Haji Jan Mohammad Ex-16, PW-8 Khamiso Ex-17, PW-9 Zameer Ahmed Ex-18, PW-10 Wahid Bux Ex-19, PW-11 Ali Hassan Ex-20, PW-12 Munir Ahmed Shah Ex-22. Thereafter, prosecution side was closed at Ex-24.

5. Statement of accused Sarfaraz Ali Sangi was recorded under section 342 Cr.PC at Ex-25. Appellant denied all the prosecution allegations and stated that PWs have deposed against him as they are bankers. Accused did not lead any defence and declined to give statement on oath in disproof of prosecution allegations. In reply to question what else he has to say? appellant replied that PWs have deposed against him as someone wanted to replace him and raised plea that he has been politically victimized. Appellant pleaded innocence. Learned trial Court after hearing both the parties convicted and sentenced the appellant as stated above.

6. Mr. Muhammad Rafi, learned advocate for the appellant, argued that neither it was duty of appellant to fill in deposit slip on behalf of accounts holders/clients, nor could he receive any cash on behalf of Bank at that time. It is contended that no amount has been embezzled by appellant. Documentary evidence has been managed against the appellant. Nothing was recovered from the possession of the appellant. Lastly, it is submitted that no banker had seen the appellant while receiving the money from the account holders and argued that appellant is innocent. In support of his contentions learned counsel for the appellant relied upon the following reported cases:

1. Abdul Latif versus Inspector General of Police and others (1999 PCr.LJ 1357).

2. Syed Qasim Shah versus The State (2009 SCMR 790)

3. Riaz Ahmed versus the State (2010 SCMR 846)

4. Naimatullah Khan versus the State through Anti-Narcotics Force, Sindh (2012 YLR 251)

7. Mr. Muhammad Ashraf Mughal, learned D.A.G., argued that bank officials and private persons have been examined by the persecution. They have fully supported the case of the prosecution. He has referred to the evidence of prosecution witnesses. Learned DAG submitted that PWs have implicated the accused/appellant in commission of offence and their evidence is corroborated by expert opinion. Lastly, he has argued that the prosecution witnesses had no enmity to falsely implicate the appellant in this case. In support of his contentions, he relied upon the case of Ghulam Mustafa and another vs. The State (1986 PCr.LJ 1635).

8. After hearing the learned counsel for both the parties we have carefully scanned the entire evidence available on record and studied case law.

9. Complainant Zulfiqar Ali Shaikh has categorically stated that on 13.01.2003 he was posted as Manager, UBL, Dokri Branch, District Larkana. On 03.04.2003 he sent written complaint to the Deputy Director, FIA, CBC, Karachi, for registration case against accused Sarfaraz Ali Sangi, who had committed fraud during his posting as OG-III, Operation Supervisor, in UBL Dokri Branch. He has further stated that he had mentioned in the complaint that accused Sarfaraz Ali Sangi has embezzled/pocketed amount and failed to deposit the same in the accounts of concerned persons and had withdrawn the amount through fake cheques from the accounts of the parties. He has given details of 29 accounts from which accused had fraudulently withdrawn amount of Rs.3,772,658/-. Accused had also committed more frauds for which he made another complaint. On 25.05.2003 in presence of Ghulam Akbar Noonari he produced the original documents and three stamps before the I.O., who secured the same and prepared such mashirnama in presence of mashirs. He also produced documents. He was cross-examined by the learned advocate for the accused and he denied the suggestion that accused had no direct dealing with the account holders. He also denied that accused had not received any cash or cheque from the account holders. Complainant denied the suggestion that he was deposing falsely at the instance of his superiors.

10. PW Irshad Ali had deposed that he was posted as Manager in UBL Dokri Branch from February 2001 to January 2003. At that time, appellant was serving as OG-III/II Officer in the same branch and he was custodian of cheque book and cash receive stamp. In those days, some of the account holders made complaint to him that their amounts have not been entered in their accounts. He reported this fact to the Head Office and inspection team arrived in the branch and conducted audit. In the audit report 24 accounts were detected wherein amounts deposited by the accounts holders were not accounted for in the accounts of the account holders and amount was misappropriated by accused Sarfaraz Ali Sangi. He had further stated that in some accounts cheques were presented for encashment and accused made the payment of those cheques but did not show debit in their accounts. In some accounts whenever cheques were presented for payment the accused made payment from his own pocket, when the amount was deposited in the account, the same was pocketed by the accused/appellant. PW Irshad Ali had categorically stated that appellant was running a parallel bank and there were some accounts in which the accused fraudulently issued the cheque books and kept the same with him and later on forged signatures, thumb impressions and misappropriated the amount. He has stated that in all appellant misappropriated an amount of Rs.3,772,658/- and caused loss to the bank. He was also cross-examined by the counsel for the appellant. He had denied the suggestion that the appellant has been falsely involved by the bank in this case for misappropriation of Rs3,772,658/-. He has denied the suggestion that he has deposed falsely.

11. PW-4 Arbab Ali Chandio had deposed that he was posted as Cashier in UBL Dokri Brnach, District Larkana from 21.07.2000 to 14.02.2003. At that time appellant was posted as OG-III in UBL Dokri Branch. Bank was inspected by Special Team and they detected amount of Rs.4,404,319/-. It was misappropriated from the accounts of account holders, namely Allah Rakhio and 24 others. Amount was withdrawn from their accounts by the appellant by forging their signatures. He has further stated that out of the above mentioned amount Rs.1,636,361/- were returned to Ovais and other 11 account holders by accused Sarfaraz Ali Sangi after taking cheques from them but entry was not made in the bank record. He has further stated that the appellant has misappropriated Rs.1,636,361/- from the account of Ghulam Nabi and 13 others by forging their signatures. He has stated that he is well conversant with the signatures and handwriting of the appellant and deposit slips of different account holders bear the signatures of accused Sarfaraz Ali Sangi. In cross-examination he had admitted that accused Sarfaraz Ali Sangi has worked with him at UBL Dokri Branch. In the cross-examination he had denied the suggestion that he was joined by FIA in the investigation in this case. He has denied the suggestion that account holders used to go before him for deposit of cash. He had also denied the suggestion that he was removed from the service because of his involvement in this case. He has denied the suggestion that he was deposing falsely against the appellant at the instant of his superiors.

12. PW-5 Muhammad Siddique had deposed that he had PLS account in UBL Dokri Branch, Larkana. He had deposited Rs.25,000/- in his account and there were two officers in the Bank at that time. He had handed over Rs.25,000/- to accused Sarfaraz Ali Sangi but the amount deposited was not found in his account. Then he approached to the Regional Office, UBL Larkana where he had shown the deposit slip. In the cross-examination he denied the suggestion that he was deposing falsely.

13. PW-6 Naley Mitho has deposed that he had saving account No.2049 in UBL Arija Branch, which was subsequently merged in UBL Dokri Branch. He deposited the amounts from time to time in his account but the same was not found. Subsequently, he has stated that he had 30 deposit slips and he had given amount to accused Sarfaraz Ali Sangi and he had put rubber stamp on the deposit slips and handed over copy of the slips to him. He had produced the record of deposit slips Ex-3/C-23/1 to 3/C-33/30. He wanted to withdraw the amount from the bank at that time accused Sarfaraz Ali Sangi was not present there when he came to know that there was no amount in his account. He moved an application to the higher officials of the Bank. Team was appointed to investigate the matter, he has stated that he had produced counter folio of deposit slips. In the cross-examination he has denied the suggestion that he had not given the amount for depositing to the appellant Sarfaraz Ali Sangi.

14. PW-7 Haji Jan Muhammad has deposed that he had saving account No.115 in UBL Arija Branch, which was subsequently merged in UBL Dokri Branch. He deposited the amounts from time to time in his account but the same was not found. Subsequently, he has stated that he had deposit slips and he had given amount to accused Sarfaraz Ali Sangi but the said amounts were not credited in his account. He moved an application to the higher officials of the Bank. Team was appointed to investigate the matter. He has stated that he had produced counter folio of deposit slips. In the cross-examination he has denied the suggestion that he had not given the amount for deposit to the appellant Sarfaraz Ali Sangi.

15. PW-8 Khamiso has deposed that he had saving account in UBL Dokri Branch. He is an illiterate, he handed over cash of Rs.30,000/- for depositing the same in his account. When he wanted to withdraw the same he was informed that there was no balance in his account.

16. PW-9 Zameer Ahmed Soho has deposed that he maintained current account No.743 in UBL Dokri Branch. On 13.08.2002 he had deposited an amount of Rs.13,000/- and obtained deposit slip. On 21.08.2002, he deposited an amount of Rs.25,000/- and stated that he had handed over the amount along with deposit slip to accused Sarfraz Ali Sangi. When he verified the balance he was informed that deposit slips were not on the record of the bank and fraud has been committed. In cross-examination he denied the suggestion that he had prepared fake deposit slips.

17. PW-10 Wahid Bux has stated that he maintained account No.771 in UBL Dokri Branch, District Larkana and deposited cash Rs.39,600/- and handed over the cash to accused Sarfaraz Ali Sangi. After one year he found that amount was not deposited by accused Sarfraz Ali Sangi in his account. In cross-examination he has denied the suggestion that he has deposed falsely.

18. PW-11 Ali Hassan has deposed that he had account No.827 in UBL Dokri Brnach and he deposited Rs.20,000/- in his account through accused Sarfaraz Ali Sangi, who was manager of the Bank at that time but fraud was committed with him.

19. PW-12 Muneer Ahmed Shah, Handwriting Expert, FIA had deposed that a case file containing signatures of accused Sarfaraz Ali Sangi, specimen signatures/thump impressions of accounts holders received by him for examination/comparison and handwriting expert opinion. He compared the questioned documents with the specimen/documents and formulated his opinion. He had produced his report as Ex-22/A.

20. Inspector Ghulam Akbar Zardari, Inspector, FIA CBC Karachi stated that he had received permission from Deputy Director, FIA for registration of the case against accused Sarfraz Ali Sangi in the year 2003. He lodged F.I.R. against appellant and proceeded to Larkana, visited Regional Manager UBL and perused the record of the UBL Dokri Branch. He recorded 161 Cr.PC statements of the PWs/Account holders. On 31.056.2003 he submitted interim challan against accused Sarfraz Ali Sangi under section 512 Cr.PC and collected specimen signatures of accused Sarfraz Ali Sangi from the Bank record and sent to the Director Technical Islamabad for expert opinion and submitted the final report on 16.12.2003. In the cross-examination he had denied the suggestion that accused has been falsely challaned in this case at the instance of the complainant and Manager Irshad Ali Saheto and Cashier Arbab Ali Chandio. He denied the suggestion that he had deposed falsely against the appellant Sarfraz Ali Sangi.

21. From perusal of the evidence we have come to the conclusion that prosecution has proved its case against the appellant for the reasons that prosecution case is based upon documentary evidence. PW Muhammad Siddique has stated that he deposited Rs.25,000/- in his account through appellant Sarfaraz Ali Sangi but the same were not credited in his account. PW Naley Mitho deposited amount in his saving account and produced 30 deposit slips and stated that the appellant Sarfaraz Ali Sangi did not credit the same in his account. PW Khamiso deposited Rs.30,000/- through the appellant but the same were not credited in his account. PW Zamir Ahmed deposited Rs.13,000/- PW Wahid Bux deposited Rs.39,600/- but were not credited in his account. PW Ali Hassan deposited Rs.20,000/- through the appellant and produced deposit slips and stated that when verified the amount the same was not found in accounts and fraud was played by the appellant Sarfaraz Ali Sangi. Despite lengthy cross-examination, nothing favourable to the appellant came on record. Deposit slips and other record including the signatures of the appellant were sent to the handwriting expert and he had produced his report as Ex-22/A. Findings of handwriting expert are reproduced as under:

1. The questioned signatures marked as Q-1 to Q-112 on the cheques/counter foils are similar in characteristics with the corresponding previous routine signatures of the accused Sarfaraz Ali Sangi, marked as R-1 to R-20.

2. The questioned signatures marked as Q-113 to Q-122 do not tally with the corresponding routine signatures of the account holder Haji Jan Muhammad, marked as RS/1.

3. The questioned signatures marked as Q-133 to Q-134 do not tally with the corresponding routine signatures of the account holder Shehzad, marked as RS/2 and RS/3.

4. The questioned signatures marked as Q-123 to Q-132 do not tally with the corresponding routine signatures of the account holder Muhammad Ibrahim, marked as RS/4 to RS-6.

5. The questioned thumb impressions marked as Q-135 to Q-140 are identical with the previous thumb impressions of Kaisar Khan on his bank specimen card, marked as R-7 and RS-8, as per ten characteristics points of identity dotted in one of his specimen print.

6. The questioned thumb impressions marked as Q-141 to Q-143 are identical with the previous thumb impressions of Ghulam Hussain, on his bank specimen card, marked as RS-9 and RS-10, as per ten characteristics points of identity dotted in one of his specimen print.

7. The questioned thumb impressions marked as Q-146 to Q-148 are identical with the previous thumb impressions of Ghulam Nabi, marked as RS-11 and RS-12, on his bank specimen card as per ten characteristics points of identity dotted in one of his specimen print.

8. The questioned thumb impressions marked as Q-144 to Q-145 are different from the previous thumb impressions of Ghulam Nabi, marked as RS-11 and RS-12, on his bank specimen card.

9. The questioned thumb impressions marked as Q-147 to Q-149 are identical with the previous thumb impressions of Abdul Rehman, marked as RS-13 and RS-14, on his bank specimen card, as per ten characteristics points of identity dotted in one of his specimen print.

22. Complainant Zulfiqar Ali Shaikh, Manager, UBL Dokri Branch, and PWs Irshad Ali Saheto and Arbab Ali Chandio were serving in Dokri Branch with the appellant at the time of fraud. They have also fully supported the case of the prosecution. They had no motive to falsely implicate the accused in this case. Mere plea of the appellant in his statement recorded under section 342 Cr.PC that he has been politically victimized as some bankers wanted to transfer him such plea is not substantiated by some cogent evidence except word of appellant in his statement recorded under section 342 Cr.PC that he did not receive amount. It is evident on record that appellant absconded away after registration of case. Handwriting/signatures of appellant on deposit slips produced before trial Court show that appellant received cash from account holders. Accused having received embezzled amount as Bank employee, he could not escape his liability as Bank employee. Learned D.A.G. has rightly relied upon case of Ghulam Mustafa and another vs. The State (1986 PCr.LJ 1635). Handwriting expert has clearly mentioned that questioned signatures on the cheques/counterfoils are similar in characteristics with the corresponding previous routine signatures of accused Sarfaraz Ali Sangi. Evidence of the prosecution is trustworthy and confidence inspiring. We have absolutely no reason to disbelieve it and we hold that prosecution has succeeded to establish its case against the appellant Sarfaraz Ali Sangi. Therefore, learned trial Court has rightly appreciated the evidence and convicted the appellant. Findings recorded by the trial Court require no interference. Conviction is maintained in circumstances.

23. For the above stated reasons, appeal is without merits and the same is dismissed.

JUDGE

JUDGE

Gulsher/PA