Abdul Zaheer (Appellant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH KARACHI

Present:

Mr. lustice Mohammad Karim Khan Agha Mr. lustice Amjail Ali Sahito,, rl

CRIMINAL APPEAL NO.134 OF 2011

Appellant Abdul Zaheer s/o Abdul Majeed through Mr. S. Muhammad Ishrat Ghazali, Advocate Complainant Razi Jamil through Mr. Kashif Hanif, Advocate Respondent The State through Mr. Irfan Ali Memon, Deputy Attorney General.

Date of Hearing 04.1'1,.2020 and 05.11.2020

Date of Announcement 11,.11,.2020

\ IUDGMENT

MOHAMMAD KAR IM KHAN AGHA, I:- The appellant Abdul Zaheer son of Abdul Majeecl has assailed the impugned judgment dated 26.02.20'17 passed by Learned Special Court (Offences in Banks) Sindh at Karachi in Case No.43 of 2008 arising out of Crime No.192 of 2008 u/s.420/468/47"1/34 PPC r/w section 5(2) PCA-II, 1.947 registered at 15 CID Sindh Civil Lines, Karachi whereby the appellant was convicted u/ s.2a5Q) Cr.PC and sentencecl to undergo Rigorous lmprisonment for seven years (7 years) and to pay a fine of Rs.2,53,69,486/ - and in default of payment of fine he was to further undergo Simple Imprisonment for 2'1, months.

2.The brief facts of the prosecution case as per the FIR lodged on 10.09.2008 by the complainant Mr. Razi Jamil, Branch Manager NIB Bank Korangi Industrial Area Karachi are that complaints were received from numerous account holders regarding shortage of funds in their accounts. l Accordingly an inquiry was conducted and it was revealed that the branch Cash Services Supervisor (CSS) namely Abdul Zaheer (the accused) had fraudulently made bogus transactions in various accounts by debiting, crediting the accounts of the customers and cash was withdrawn through the cheques therefore the accused was transferred,

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and subsequently it was disclosed that an amount of more than Rs.29 million were found short in the account of complainants/account holders and that the appellant was responsible for the same through his illegal acts.

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3.After completion of the investigation, the charge against the accused was framed to which he pleatied not guilty and claimed trial of the case.

4."l o prove its case the prosecution examined 08 prosecution witnesses and exhibited nurrerous documents and thereafter the side of the prosecution was closed. The statement of the accused u/ s 342 Cr'P.C. was also recorded in which he denied all the allegations leveled against him and claimed false implication. He did not examine himself on oath or call any defense witnesses in support of his defense case.

5.Learned Judge Special Court (Offences in Banks) Sindh at Karachi ) after hearing the learnecl counsel for the Parties and assessment of evidence available on record, vide the impugned iudgment dated 26.02.2077, convicted and sentenced the appellant Abdul Zaheer as stated above, hence this appeal has been file<l by the appellant against his c()nviction

6.The facts of the case as well as evidence produced before the trial court fintl an elaborate mention in the judgment dated 26.02.20'11 passed by tlre trial court atrd, therefore, the same may not be reproduced here so as to avoid tluplication and unnecessary repetition.

7.Learned counsel for the appellant has contended that he is completely innocent and has been falsely implicated in this case; that no PW has given evidence against him; that all the documents which were exhibitecl were photocopies which were inadmissible in evidencei that there was no evidence to link him to the offenses so charged and as such I l're shoukl be acquitted of the charge based on the benefit of the doubt and his appeal allowed.,

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8.On the other hand learned Deputy Attorney General and learned counsel for the cornplainant have futly supported the impugned judgment. They have contended that the prosecution has proved its case against the appellant beyond a reasonable doubt as the appellant has been I fully irnplicated in the case by the PW's and documentary evidence and in particular the audit repolt and as such the appeal should be dismissed.

9.We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant, the impugned iudgment with their able assistance and have considerec'l the relevant law.

10.At this point it is pertinent to note that the appellant is on bail granted by this court pending the outcome of his appeal for the last 8 years after previously spending 3 years and 3 months in jail without the benefit of 5.382 (B) Cr.PC which seems to have been wrongly denied to him

11.After our reassessment of the evidence we are of the view that the prosecution has not been able to Prove beyond a reasonable doubt that the appellant was guilty for the offenses for which he was charged for the following reasons;

(a)The appellant has mainly been convicted because (a) he was allegedly the cash supervisor however this is in some doubt as according to PW 1 Razi Jameel he was client supervisor whose lob it was to bring more account holders to the bank and (b) the audit report was against him however the audit report has not explainecl as to how a loss of several lacs iumped to 3 crores'

(b)No prosecution witness has given any direct evidence of any fraudulent activities of the appellant excePt PW 1 Razee fameel I who states in his evidence that the appellant committed the , fraud but produced no evidence in support of his contention. Surprisingly his co-accused Riffat in whose account some of the fraudulently acquired funds were transferred to and withdrawn, who there aPPears to be more evidence against.

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t.' was acquittecl and neither the bank nor the complainant filed any appeal against his acquittal. PW 2 Jameel Ahmed and PW 3 Muhammed Ilyas simply state in their evidence that the appellant assisted them in opening their accounts which was his

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job. In fact PW 4 Saeed Mehboob who was the operations mar-rger at the time at the concerned branch states in his cross tt i{ examination as under at P.151 and 153 of the paper book which tends to indicate that the person who was meant to monitor fraucl at the branch had no knowledge of any such fraud let alone being committed by the appellanU

"l do not knou about the details of tlu cax tolut euer I was told by fraud management dtpt I lraz'e stated abotte ' I ruas assigned tlp rlttties to nny custonter relnted enquiry, nny problem in operntion ruork, if there is any thing zphich I am unable to solpe it I should inform the hranch manager, lt is coffect that it was also my iluty to ettsure that all process is zero error and timely reported and monitory of suspicious transactions as well as management of > operation laws, and control and detection of /vaud and forgery. lt is correct that so far mY responsibilities are concerned nothing any ndaerse was reported to me during my posting in the branch in respect of any discrepancies, No enquiry u)as conducted till my posting by fraud rtsk management against anq employee. Tlu branclr Manage r :roas all oter incharge and he directlv was irutolued rpith lrcad ofice, I also did not receioe any complaint against accused Abdul Zaheer duing my posting. lt is conect that no record u;as presented by me or was demanded by fraud risk management.". (bold added)

(c)PW6 Muhammed Samiullah Khan who carried out the audit which revealed the fraud in his cross examination at P.163 of the Paper Book shows improvements in his 5'161 statement, that he had no proof that the appetlant was cash supervisor as apparently he did not need evidence of the same despite not even calling for his personnel file, he did not produce the statements of bank staff

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or complainants which were recorded by him and has only relied on photocopy documents which greatly detracts from the veracity of his audit report and states as under;,

zq1 "lt is correct tlrat nty stateruents u/s 161 Cr.P.C, ruas recorded huice one on 13.9.2008 nnd second on 9.10.2008. It is conect that I haae not pointed out the incident of fraud in my statement recorded ,y's 161. Cr.P.C. on 13,9..2008. lt is conect that in my statefient recorded on 9.1.0.2008 I haae disclosed in detail about the fraud. lt is correct that I hatte also not mentioned tlu period o.f enquinl ns to rolrcn it started and completed in my stnternent recorded u/s 16'l Cr.P.C. I haae not I produced the personal file of accused Abdul Zaheer showing the appointment oJ accused as cash superuisor. It is corect that I haoe not produced the statement of bank stalf including claimants uthose statements uere recorded by me iluring the course of enquiry. Accused was cash superuisor further says his designation u.tas cash supentisor no further proof is required. lt is correcl thnt nccording to opinion gioen by me I lwte pointed out the negligence of nccuxd Abdul Zaheer. lt is inconect to say that I haue not disclosed in mV report as to lroru frnud u,as comntitted tpith tle bank. It is conect thqt documeflts produced in court tre not certified copies from the bank record"(bold added).

(d)Even the audit report only finds the appellant guilty of negligence as opposed to criminality which report he concealed \l' from the IO. Interestingly, he found PW 1 Razee Jamil guilty of gross negligence and yet he is a PW in this case which suggests that PW 1 Razee Jamil's rather limited evidence against the appellant was in order to save his own skin. Likewise is the case of PW 4 Saeed Mehboob which tends to suggest that the more junior appellant might have been made a scape goat in order to spare rnore senior bank officials

(e)The credibility and reliability of PW 7 Muhammed Nazim's Quershi's evidence in our view was shattered during cross examination as he was unable to produce a single clocument to link the accused to the evidence which he gave against the accused and as such we place no reliance on his evidence which even otherwise hardly implicates the appellant in any fraud.

I (0 With regard to the evidence of the IO PW 8 Suhail Ahmed it appears that he has treated this as an asset beyond known sources of income case but even otherwise has not been able to link the

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il' accused to any houses or plots which he allegedly owned and were allegedly purchased out of the proceeds of crime acquired through the commission of the offenses for which he has been charged. The documents which he produced were also all photocopies and

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inadmissible in eviclence. The investigation of the IO also aPPears to be lacking as his evidence reveals that he clid not seize the concerned computer from the bank which was assigned to the appellant and from where the fraudulent transactions were mostly maeie let alone forensically examine the same, he did not visit the IT or audit departments of NIB Bank to check the allegedly fraudulent entries, he failed to collect the deposit slips of the complainants and bank statements none of which were exhibited and as such it is difficult to see how he reached the conclusion concerning the fraudulent transactions and that the appellant was responsible for them especially as by his own admission he tlid not read the internal audit report which the prosecution placed so + much reliance on.

(g)That no complainant from whose account money was taken has implicated the appellant.

(h)That no money was recovered from the appellant and no withdrawal cheques with his signature on have been recovered.

(i)That there is no evidence that the assets which were allegedly owned by the appellant and purchased out of the proceeds of crime arose out of the offenses for which he has been charged are Iinkeci to him.

O That all the documents exhibited against the appellant are I photocopies and are inadmissible in evidence.

(k)As discussed above there is very little evidence against the appellant and there are considerable doubts in the prosecution

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case. It is settled by now that the accused is entitled to the benefit of the doubt not by way of concession but as of right.

12.As such the appeal is allowed by extending the benefit of the doubt |' to the appellant and the appellant is acquitted of the charge and his bail bonds stand released.

13.The appeal is disposed of in the above terms

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IUDG',E

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