SYED ANEES HASSAN S/O QAMARUL HASSAN (Appellant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH KARACHI

Present:

Mr.lustice Mohammad Kaim KhanAgha 7 fustice Mrs. Kausar Sultana Hussain,

CRIMINAL APPEAL NO.425 OF 2027

Appellant: Syed Anees Hasan son of Qamar ul Hassan through Mr. Ahmed Ali Hussain, Advocate

Respondent: The State through Mr. Gul Faraz Khatak, Assistant AttorneY General.

Date of Hearing: 71..77.2027

Date of Announcement: 77.71.202L

T UDGMENT

MOHAMMAD KARIM KHAN AGHA. I:- The a ppellant Syed Anees Hasan son of Qamar ul Hassan has assailed the impugned iudgment dated 27.07.2021 passed by learned Judge, Special Court (Offences in Banks) Sindh at Karachi in Case No.41 of 2011 arising out of Crime No'07 of 2011 under section 420/467/468/471./477-A/1.09/34 registered at PS FIA, SBC, Karachi whereby the appellant was convicted as under:- a) Accused Syed Anees Hassan s/o Syed Qamar ul Hassan is convicted u/s.420 PPC and sentenced to suffer 06 years R'l and fine of Rs.241 million. In case of nonpayment of fine he shall suffer further S.I. for 01 year more.

b) He is also convicted u/s.468 PPC and sentenced to suffer 04 years R.l. and fine of Rs.50,000/-. In case of non-payment of fine, he shall suffer S.I. for 06 months more' c) He is also convicted u/ s.471 PPC and sentenced to suffer 03 years R.I. and fine of Rs.50,000/-. In case of non-payment of I fine, he shall suffer S.I. for 06 months more.

d) Atl the sentences shall run concurrently' Benefit of Section 383-8 Cr.PC is also extended to accused.

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2.Briefly stated that facts as narrated in the FIR lodged by the complainants Mr. Fazal Muhammad and Mr. Muhammad Zubair, who are the Vice Presidents of UBL, are that the complainant bank provided financial facilities to M/s. Pak Rock Oil Trading Corporation on r mortgaging the property viz Plot No.6 E-2, Gulberg-Ill, Lahore and finance was disbursed by the bank to the accused Syed Anees Hassan and Yasir Zaidi who were the directors of the corporation. It is further narrated that the loan was defaulted by the company therefore a recovery suit in the Hon'ble High Court of sindh was filed and subsequently suit NO.D-18/2010 was decreed amounthg to Rs.224,251',247/-. The complainant bank had got verified the documents from LDA (Lahore Development Authority) but said documents were not authenticated. The bank had conducted enquiry and found that documents on which the loan was sanctioned were bogus, fake therefore, the complaint was filed against the accused who cheated and defrauded the bank and committed willful default

3.After usual inquiry and completing all the legal formalities Io submitted challan against accused before the concerned trial court' Thereafter a charge was framed against the accused to which he pleaded not guilty and claimed trial of the case.

4.The prosecution in order to prove its case examined 15 prosecution witnesses and exhibited various documents. The statement of accused was recorded under section 342 Cr.P.C in which he denied all the allegations leveled against him. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as set out earlier in this judgment. Hence, the appellant has filed this appeal against his conviction.

5.The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 27.07.2021, passed by the triai court and, therefore, the same may not be

'. reproduced here so as to avoid duplication and unnecessary repetition.

6.Learnedcounselfortheappeilanthascontendedthattheheis innocent of any wrong doing; that he did not collude with anyone to tt4K/P.tj

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defraud the bank; that his signatures are not on the ProPerty document; that the mortgaged property did not belong to him; that he had no idea that the property which was mortgaged did not belong to Ammar Yasir t Zaidi; that if all those who verified the genuineness of the property clocument which included bankers, lawyers and valuers had been Iet off how could he have possibly colluded with any one in order to defraud the bank and as such based on any of the above factors the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on Nasir Abbas v The State (2011 SCMR 1966), Agha Siraj Khan Durrani v The State (2000 P Cr. L J 1329), Hakim Ali Zardari v The State (PLD 2002 Lahore 369), Muzammil Niazi and Others v The State (PLD 2003 Karachi 526), H.aii ]amil Ahmad v Mst. Shahnaz Parveen (201.6 P Cr. L J Note 40-Lahore ), Rehmat alias Rhaman alias Waryam alias Badshah v The State (PLD 1977 SC 515), Syed Mushahid Shah v Federal Investment Agency (2017 SCMR 1218), Muhammad Shah V The State (2010 SCMR 1009)' Zalfar v ., The State (2021 YLR 1918) and one unreported case of (Nusrat Ali Shar & Ors. v The State) passed by Supreme Court in Cr. Appeals No'24-K 25-K and 26-K of 2018 on26.02.2079

7 .On the other hand learned Assistant Attorney General appearing on behalf of the State and who was also representing the complainant bank has fulty supported the impugned judgment and has contended that since the prosecution had proved its case against the appellant beyond a reasonable doubt his appeal should be dismissed. In support of his contentions, he placed reliance on Galla Nageswara Rao v State of Andhra Pradesh (1992CI.L.J. 2601), Ch, Sami Ullahv The State (1984 P Cr. L J 1486), Maqsood Pervez alias Billa v The State (2000 SCMR 1859)' Qudratullah v The State (PLD 2017 Peshawar 5), Muhammad Hussain v The State (1988 P Cr. L | 2029), Babu Lal v The State (2019 P Cr'Ll1'57) and Ghufran v The State (2012 P Cr. L J 98).

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8.We have heard the arguments of the learned counsel for the appellant as well as learned Assistant Attorney General and have gone through the entire evidence which has been read out by the appeliant, and b

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the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9.After our reassessment of the evidence we find that the prosecution I has NOT proved its case against the appellant beyond a reasonable doubt for the following reasons;

(a)Admittedly, the appellant was a Director in Ms Pak Rock Oil Trading Corporation who availed financial facilities from the bank by using a property document as security in the name of absconding co-accused Ammar Yasir Zaidi who was also a director of the aforesaid company but this fact alone does not make the appellant automatically guilty for the offences for which he was charged.

(b)It is unclear whether the appellant or absconding co-accused Ammar Yasir Zaidi produced the property document before the bank as collateral for the finance facility.

(c)The property document was not in the name of the appellant and his signature does not aPPear any where on it'

(d)That the bankers, lawyers and valuers including members of the LDA whose duty it was to verify the ProPerty document all found it to be legaily valid and of sufficient value to cover the loan which was disbursed by the comPany' If such professionals verified the document as genuine how can the ippellant be expected to know otherwise. Since none of the a?oresaid professionals were charged in this case it cannot be said that ihe appellant coiluded with any one ln fact such persons have alf been let off by the IO which has severely iamaged the prosecution case for which stricfures were Passed against the iO in the impugned judgment for his poor investigation.

(e)Once the concerned bankers were let off it became almost impossible for the prosecution to prove that the appellant had connived with them which is the case in hand.

(f)That no evidence has come on record that the appellant either knew or it could reasonably be inferred from the evidence that he knew that the documeni was a forgery and as such he lacked the required mens rea to commit the offences especially as there is no evidence that he was involved in any forgery or collusion with others.

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(g)No PW had deposed that the appellant was in any way involved in forgery.

10.with regard to mens rea for the offences so charged it was held by the supreme Court in the case of Nasir Abbas (supra) atP.1970 as ur.det

3ao "8. Before dilating on the conduct of the appellant as to ruhether he committed the ffinces under ruhich he was tried and conuicted in tlw light of the eaidence led during trial, it tuould be pertinent to refer to the penal prooisions under which le stands conaicted. These are as follotus:- '420. Cheating and ilishonesty inducing ileliaer of property-- Whoeaer cheats and thereby dishonestly induces the person I deceiaed to delitter any property to any person, or to malcc, alter or destroy tht tuhole or any part of a oaluable secuity, or anything uhich is signed or sealed, and uhich is capable or being conaerted into a aaluable security, shall be punished zoith impisonment of either desciption for a term which may extend to setten years, and sJull also be liable to fine.

468.Forgery for purpose of cheating--- Whoeoer commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished toith impisonment of either description for a term ruhich may extend to seaen years, and shall be liable to fine.

471.. llsing as gutuine a forged document----Woever fraudulently or dishonestly uses as genuine any document ailticlt he knozus or has reason to belieae to be a forged document, shall be punishcd in the same mfrnner as if he had forged such document."

g. While examining the judgment of the tial Court, ute noted with dismay that the Court besides non-reading material eaidence on record, did not keep in tiezu requirement of proof of ttoo essential elements of an ffince to utarrant a fnding of guilt i.e. mens rea and actus reus. The age old Latin phrase epitomizes this concept, "actus non facit reum nisi mens sit rea" ,rihirh *rort that tht act does not make a Person guilty unless the mind be also guilty. Actus reus in simple pnrlance is the actual act of committing some offence contrary to the lau of tlrc land and mens rea is tlrc intent to commit the said offence. If either of tle elements is ntissing, the conduct roould not attract a penal proaision unless it is a case of stict tiability toherein the absence of mens ren may not be fatal to the prosecution. The toording of section 420, PPC indicates that the afore- referred ttoo ingredients are prerequisites for trying and punishing an aicused under-this prortision. For instance 'cheating dishonestly' is indicatiae of the ruens rea zuhereas inducing a Person "to deliaer any property to any person, or to make, alter or destroy" constitutes the actus reu.s. In sectiin'468 of the Pakistan Penal Code, two essential elements of the offence are 'forgery' nnd'cheating'. 'Cheating' (section 415 of the Pakistan Penal Code) inter alia includes element of deceitting a Person deceioed to fraudulently or dishonestly rttith aaiett,to induce the person so do something or to omit to do something ruhiclt he roould not hatte done or omitted, if h; had not been so deceioed, The actus reus under section 468, PPC is tlte making of a fnlse instrument whercas the mens rea is three folil i.e. :-

i)that the document is used to induce sotneofle to accept it as genuine, ?- ii) thot tlrc person before whom the ilocument is ptoiluced will accept it as genuine and in so doing he uill do some act or omit to do something to his oun or someofie else is ilamaged or iniureil ot is intended to "support any claim or title" or with an intent to commit fraud, and .

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iii)that the maker of the false instrument/docuffient is aware that the document in question is false.

10.Section 471 of the Pakistan Penal Code is attracted u'hen a Person though is not a maker of the forged document uses it as genuine 'fraudulently' or 'dishonestly' about zohich he knotos, or has reason to belieoe to be a forged document, Thus under this prooision the actus reus zuould be the act ofusing a forged document as genuine and the fliefls rea woulil be his' dishonest intent and the knowledge that the document is forged."

"11.. As mentioned earlier in this judgment we find that based on the particular facts and circumstances of this case the prosecution has failed to prove either through direct evidence or injerence based on the conduct of the accused that there was any mens rea on his part to commit any of the offences for which he was convicted.

12.It is a cardinal principie of criminal jurisprudence that the prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession. In this resPect reliance is placed on the case of

Tariq Pervez V/s. The State (1995 SCMR 1345) wherein the Supreme Court has observed as follows:-

"It is settled law that it is not necessary that there should be many circumstances creating doubts' If there is a single circumstance, which creates ieasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

13.For the reasons discussed above we find doubts in the prosecution case against the appellant and thus by extending the benefit of the doubt

to the appellant the appellant is acquitted of the charge' the impugned be judgment is set aside, his appeal is allowed and the appellant shall released from jail unless wanted in any other custody case' 1.4 The appeal stands disposed of in the above terms E nlul u

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