IN
THE HIGH COURT OF SINDH, KARACHI
Criminal
Appeal No.85 of 2012
Criminal
Appeal No.86 of 2012
Present: Ghulam Sarwar
Korai, J. Naimatullah Phulpoto, J.
Appellants: Mrs. Umme Rabab and Syed
Muhammad Ali through Syed Ali Bin Adam Jafri, Advocate
Respondent: The State through Mr.
Muhammad Ashraf Mughal, Dy. Attorney General of
Pakistan.
Date of hearing: 26.09.2013
J U D G M E N T
NAIMATULLAH PHULPOTO, J.-- By this
single judgment we intend to dispose of aforesaid appeals filed by Mrs. Umme
Rabab and Syed Muhammad Ali Rizvi as the same arise out of the same judgment.
Both appellants and others were tried by learned Special Judge (Offences in
Banks) Sindh at Karachi for offences under sections 409, 468, 471, 477-A/109
PPC read with section 5(2) of the Prevention of Corruption Act, 1947. After
full-fledged trial all the accused were acquitted by judgment dated 30.01.2012,
relevant portion of the judgment is reproduced as under:
“I have
scrutinized and evaluated the evidence of prosecution, documents as well as
statements recorded under section 342 Cr.PC. It is prime duty of prosecution to
procure the substantial evidence against the culprits. The complaint regarding
misappropriation of Rs.5 million were made by the inspection officer in respect
of passing of debit voucher of Rs.5 million from the account of SLIC account
and subsequently it was credited in the account of accused Syed Muhammad Ali
Rizvi and vouchers were signed by accused the then Manager Masood Ahmed, I.I.
Chundrigar Road Branch and Malik Muhammad Shabir Ahmed OG-I. According to
compliant Exh.7/A there was over draft of Rs.1459237.76/- in the account
accused Muhammad Ali after crediting of Rs.5 million against whom cheque of
Rs.5 million was drawn which to be paid and transfer delivery collected by Al
Rehman branch on behalf of NDFC Shaheen Complex branch Karachi in which the
name of payee was accused Syed Muhammad Ali was shown. The complainant Badrul
Hasnain adduced regarding the inspection and special audit report dated
15.08.1996 and he has produced attested photocopy of such report. The
complainant adduced that through debit voucher Exh.7/C Rs.5 million was illegally
debited from A/c No.37813-3 by accused Masood Ahmed the then Manager deceased
accused Abdul Ahad Siddiqui OG-II and subsequently through credit voucher
Exh.7/D said amount was transferred in the account of accused Muhammad Ali. The
evidence of complainant regarding debit and credit vouchers and report of
handwriting expert/PW Shaukat Ali suggested that signatures appearing on both
vouchers of accused Masood Ahmed as well as of deceased accused Abdul Ahad
Siddiqui. Both accused in their statements u/s 342 Cr.PC have admitted their
signatures over the vouchers and narrated that they have committed no
illegality as both the vouchers were pre-audited.
I have assessed that the backup documents of detect vouchers are not produced
by prosecution with the vouchers and there was no illegal entries were detected
by the regular auditors of the bank but through special audit such alleged
transactions were transpired but such original report is not available or
produced by the prosecution but the court witness Muhammad Riaz said about
non-availability of the report. The alleged amount credited by accused Masood
Ahmed were not utilized by him, neither he is beneficiary of the sums whereas
the SLIC had not made any complaint for debiting of their account maintained with
UBL, I.I. Chundrigar Road Branch, Karachi. I have noticed that it is business
of the bank that regularly debit and credit vouchers were prepared but under
the pre-audit no discrepancy was find out and if any defect had appeared in the
books, no such departmental enquiry was conducted by the bank. From the
prosecution evidence it appears that the allegations against accused Muhammad
Ali and his mother Mst. Ume Rabab and his father regarding abetment in the
case. Accused Muhammad Ali was beneficiary of credited amount of Rs.5 million
for which he admitted that such amount was lying in his account due to sale of
properties owned by his father at Khairpur. The prosecution except the
complainant no PW has deposed regarding crediting of an amount by accused Muhammad
Ali, his father and mother therefore the allegation of abetment is unsupported
by PWs. Accused Syed Muhammad Ali has not furnished the documents or other
material to prove that which property were sold by his father in Khairpur
neither he has produced Form VII from the Revenue Department, Form-II Extract
of Property from concern deptt: nor he stated that which property was sold for
how much amount or any sale deed has been produced to establish that the amount
lying in his account of sale proceed of their properties, and even deposit slip
of the amount were not produced, therefore, it is obvious that credited amount
withdrawn by accused and the monthly income certificates purchased by accused
were of amount which was transferred through credit voucher by accused Masood
Ahmed and Abdul Ahad Siddiqui, therefore, he is not lawful owner and entitled
for the alleged amount but bank is entitled for that amount. The prosecution
has not furnished the adequate evidence against mother of accused Muhammad Ali
or his mother in respect of abetment and no PW has deposed against him as there
appears no act of commission of offence has been set up by the prosecution nor
any willful concealment of material fact has been found or she has added or
instigated his son for such abetting. In prosecution evidence I have noticed
that alleged misappropriation, forgery or criminal breach of trust had happened
with the account of SLIC but they have no grievances. I.O. Faqeer Muhammad who
arrested accused Masood Ahmed, seized the documents, recorded the statements of
PWs u/s 161 Cr.PC has not come forward in the case for evidence, which
demonstrate that he is not willing to support the prosecution. Accused Masood
Ahmed has stated in his statement recorded u/s 342 Cr.PC pointed out that high
ups of bank were annoyed with him because of his activities with officers
association. He has produced the photocopy of information report sent by him to
the Secretary, Ministry of Interior, Government of Pakistan against the
complainant of present case. In this case accused Masood Ahmed remained in jail
for 21 months whereas co-accused Syed Muhammad Ali remained behind the bar for
about 14 months and they have suffered the agonies of trial for about 15 years
therefore in such circumstances and reasons I find that prosecution case is
precarious and available testimony is suspicious hence my findings on the point
No.1 and 3 are answered as doubtful and point No.2 affirmative.
Having
regard to the evidence, facts, discussion and findings, I am of the opinion
that prosecution is unsuccessful to established the charge against the present
accused whereas prosecution testimony has made the case doubtful, therefore by
extending benefit of doubt accused namely Masood Ahmed, Syed Muhammad Ali Rizvi
and Mrs. Umme Rabab are hereby acquitted u/s 245(1) Cr.PC from the present
case. (The proceedings against deceased accused namely Syed Sarwat Hussain
Rizvi has already been abetted). Accused are present in the court on bail,
their bail bonds are cancelled and surety stands discharged.
The seized
monthly income certificates and Standard Certificates amounting to Rs.27 Lacs
recovered and seized from the accused Syed Muhammad Ali Rizvi shall be encashed
by the UBL, I.I. Chundrigar Road Branch, Karachi whereas amount of accused Syed
Muhammad Ali lying in his account bearing No.39188-0 at UBL, I.I. Chundrigar
Road Branch, Karachi shall also be transferred and entrusted to the above
bank/branch.”
2. In the appeal filed by Mrs. Umme Rabab it
is prayed that last para of the judgment may be declared null and void having
no legal effect and to direct the trial Court to hand over un-exhibited
property to the appellant. Appellant Syed Muhammad Ali Rizvi has also made
similar prayer in the appeal.
3. At the time of filing of appeals,
following order was passed by this Court on 15.03.2012:
“1. Through instant appeal judgment of the
Banking Court dated 30.01.2012 has been impugned, whereby, the learned Judge
while acquitting all the accused by giving them benefit of doubt directed
seizure of the income certificates as well as money lying in the account of
acquitted accused Mrs. Umme Rabab. Counsel contends that the judgment is bad to
the extent of its seizes the certificates as well as the amount lying in the
Bank as after coming to the conclusion that prosecution has failed to prove its
case beyond reasonable doubt, this amount could not have been confiscated.
Point raised requires consideration. Admit. Let notice be issued to the DAG.
Call record and proceedings. Paper Book be prepared.
2. Notice to DAG for 03.04.2012. Till then
the effect of the impugned judgment is suspended.”
4. Brief facts leading to filing of appeals
are that F.I.R. No.22/1996 of FIA, CBC, Karachi was lodged under sections 409,
468, 471, 477-A, 109 PPC read with section 5(2) of the Prevention of Corruption
Act 1947 wherein Mr. Badrul Hasnain, Assistant Vice President, United Bank
Limited, I.I. Chundrigar Road Branch, Karachi stated that Masood Ahmed, Vice
President, Malik Mohammad Shabbir, OG-I, UBL, I.I. Chundrigar Road Branch,
Karachi issued signed and authenticated fictitious and bogus vouchers of
Rs.5.00 million on 21.04.1996 in the accounts of M/s. State Life Insurance
Corporation of Pakistan without any lawful authority from the account holder
and fictitiously credited in the account of Syed Muhammad Ali Rizvi son of Syed
Sarwat Hussain Rizvi, Assistant Manager (Controller Money Market and Financial
Analyst) Investment Division, M/s. State Life Insurance Corporation through PLS
SB Account No.39188-0 with the same amount which was withdrawn by him through
cheques. In above manner Syed Muhammad Ali Rizvi in collusion and in abetment
with common criminal intention, with Masood Ahmed, Vice President and Malik
Muhammad Shabbir OG-I have cheated and defrauded the bank and misappropriated
huge funds amounting to Rs.5.000 Million and also committed forgery and
criminal breach of trust.
5. A formal charge upon the accused, namely,
Masood Ahmed, Abdul Ahad Siddiqui, Syed Muhammad Ali and Mrs. Umme Rabab was
framed by the Court under sections 409, 468, 471, 477-A/109 PPC read with
section 5(2) of the PCA-II of 1947 at Exh.2 on 09.12.2000 in which accused
persons pleaded not guilty and claimed to be tried at Exh.3 to 6.
6. After framing of charge, the prosecution
examined as many as seven PWs, who also produced documents exhibited in the
Court. One CW Muhammad Riaz was also examined. All the PWs were cross-examined
by the defence counsel of the accused respectively and after recording the
statement of accused under section 342 Cr.PC, the trial was fixed for final
arguments. After hearing the arguments of the prosecution and the defence
counsel, learned trail Court passed the impugned judgment dated 30.01.2012.
7. Mr.
Ali Bin Adam Jafri, learned counsel for the appellants argued that accused have
been acquitted by the trial Court by extending them benefit of doubt but the
direction of the trial Court for seizure of monthly income certificates,
standard certificates as well as money lying in the account of Syed Muhammad
Ali Rizvi and Mrs. Umme Rabab was illegal. It is further argued that prosecution
has failed to prove its case against the accused beyond any reasonable doubt
and amount in question could not have been confiscated. He further submitted that
after acquittal of the accused possession of monthly income certificates,
standard certificates as well as money lying in the bank account must be deemed
to be lawful and appellants could not be deprived from their property. In
support of his contentions he relied upon the cases reported as Abdul Rahim v. State through Salik Ram (AIR
1956 ALLAHABAD 319) and Matwalli alias Mutalli versus The State (1990 PCr.LJ
731).
5. Mr.
Muhammad Ashraf Mughal, learned D.A.G. could not controvert the contentions
raised by the learned advocate for the appellants.
6. In our considered view under section 517
Cr.PC what the trial Court has to determine is, “as to which person is entitled
to the possession of the property”. It is not for the criminal Court to
determine the title to the property. After acquittal of the accused in this
case the possession of the monthly income certificates and standard
certificates amounting to Rs.27 lacs by the appellants must be deemed to be
lawful, trial Court was supposed to restore the same to the appellants.
Moreover, no one has claimed the same. On the other hand, appellants/accused claimed
the same in their statements recorded under section 342 Cr.PC. Apart from that
before passing the order to seize property against the appellants in terms of
section 517 Cr.PC, appellants were not heard.
7. Undoubtedly, it is the normal procedure
in the cases of this nature that, “after acquittal of the accused to restore
the property to the person from whose possession it was taken”. There is no
reason for us to depart from this procedure and legal position and since
monthly income certificates and standard certificates were recovered from the possession
of appellants under mashirnama, trial Court without assigning reasons seized
the amount of accused. Therefore, we set aside the last para of the judgment of
the trail Court regarding disposal of the property/ income certificates and
standard certificates and the appeals are allowed to the above extent and,
therefore, we direct for return of property/monthly income certificates and
standard certificates belonging to the appellants after proper verification and
identification as per rules.
Appeals accordingly stand disposed of.
JUDGE
JUDGE
Gulsher/PA