Muhammad Yousaf Sindhu VS The State etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

CRIMINAL REVISIONS NOS. 173 OF 2024

REHAN AKBAR

Vs

THE STATE AND ANOTHER

CRIMINAL REVISIONS NOS. 180 OF 2024

MUHAMMAD YOUSAF SINDHU

Vs

THE STATE AND ANOTHER

Petitioners by : Raja Zeeshan Khan, Advocate.

(In Crl. Revision No. 173/2024) Syed Abaid Ullah Shah, Advocate.

(In Crl. Revision No. 180/2024)

Respondents by : Raja Zamir ud Din Ahmed and Ms. Asia Batool, AAGs.

Mr. Fazal Maqsood S.I., FIA.

Date of hearing : 10.2.2025

MUHAMMAD AZAM KHAN, J.

1.By this common judgment, I intend to dispose of both the titled Criminal Revision Petitions arising out of the same Impugned Judgments dated 18.10.2024 and 12.11.2024 passed by learned Judicial Magistrate Section 30, Islamabad- West (“Trial Court”) and the learned Additional Sessions Judge/Presiding Officer, Prevention of Electronic Crimes Court, Islamabad-West (“Appellate Court”), respectively.

2.The Convict/Petitioners [Rehan Akbar and Muhammad Yousuf Sindhu], have filed the instant Criminal Revision Petitions under Sections 435 and 439-A, Code of Criminal Procedure, 1898, (“Cr.P.C”) against the Judgment dated 18.10.2024 (“Impugned Judgment I”) passed by the learned Trial Court whereby the Convict/Petitioners have been sentenced in offence under Section 14

Criminal Revisions Nos. 173 and 180/2024

of the Prevention of Electronic Crimes Act, 2016 (“PECA”) to undergo imprisonment for two years and fine of Rs. 500,000/- each and in default of payment of fine to further undergo six months’ simple imprisonment. The Convict/Petitioners have further assailed the Judgment dated 12.11.2024 (“Impugned Judgment II”) passed by the learned Appellate Court whereby the Appeals filed by the Convict/Petitioners against Impugned Judgment have been dismissed.

3.The brief facts of the case in hand as per the Petitions are that one Denial Jones having e-mail I.D:[email protected], with mala fide intentions and ulterior motives, by posing himself to be the Director General of Sheller Saving & Loan Limited Bank (London), with dubious premise to deliver an amount of US@30/- million for social welfare activities in Pakistan, with the connivance of co-accused persons namely Franklin Chilee Nnanna alias Joseph Frankan, Philip Richard, John Ebuka Okeke alias Khadim Nigerian National, Rehan Akbar (Petitioner in Criminal Revision No. 173/2024) and Muhammad Yousaf Sindhu (Petitioner in Criminal Revision No. 180/2024), defrauded the Complainant [Qareeb ur Rehman] to the tune of total amount i.e. PKR 11.1 Million as processing fee/security fee/custom clearance/anti-money laundering certificate charges and diplomatic courier charges, out of which an amount of PKR 2.6 million approximately were deposited into the bank accounts of abovementioned accused persons and remaining amount was sent to the gang members through Western Union by the Complainant. Hence, a case FIR No.39/2019 under Section 14 of the Prevention of Electronic Crimes Act, 2016 (“PECA”) read with Sections 34, 109, 419, 420, 468 and 471 of the Pakistan Penal Code, 1860 (“PPC”) read with Section 14 of the Foreigners Act, 1946 was registered at P.S FIA, Cyber Crime Reporting Centre, Islamabad.

4.After the registration of FIR, Challan under Section 173, Cr.P.C was submitted before the learned Trial Court on 04.09.2020, copies under Section 241-A, Cr.P.C were supplied to the Convict/Petitioners and charge was framed against the Convict/Petitioners to which they pleaded not guilty and claimed trial. Thereafter, nine prosecution witnesses were produced before the learned Trial Court. Convict/Petitioners opted not to produce defence evidence or to appear under Section 340(2), Cr.P.C to record their statement. After hearing arguments

Criminal Revisions Nos. 173 and 180/2024

of both the sides, the learned Trial Court vide Judgment dated 18.10.2024 convicted the Convict/Petitioners under Section 14 of PECA and sentenced for two years and imposed fine of Rs. 5,00,000/-. in default of payment of fine, the Convict/Petitioners have to further undergo six months SI.

5.Being aggrieved of the said Judgment, the Convict/Petitioners filed Criminal Appeal before the learned Appellate Court who after hearing arguments from both the sides, dismissed the Appeal filed by the Convict/Petitioners.

6.Through the instant Criminal Revision Petitions, the Convict/Petitioners have assailed the Impugned Judgments passed by the learned Courts below.

7.The learned counsel for the Convict/Petitioners in both the titled Petitions argued that the Impugned Judgments are against the law and the facts of the case, therefore, liable to be set-aside; that the charge framed by the learned Trial Court is vague in nature as the same was not framed in a manner that could enable the Convict/Petitioners to know the exact nature of accusation made against them so that the Convict/Petitioners could give a proper reply of the same; that the learned lower Courts failed to appreciate the statements of the Convict/Petitioners u/s 342, Cr.P.C wherein the Convict/Petitioners denied the allegations and maintained that they neither contacted the complainant nor demanded the alleged amount and they have been falsely involved in this case; that it is settled law that if any piece of evidence is not put to the accused in his statement under Section 342, Cr.P.C, the same cannot be used against him for his conviction; that the role of the Convict/Petitioners is the same as one of the prosecution witness namely Muhammad Asif but the I.O as well as the Complainant with the connivance of each other booked the Convict/Petitioners just to extort money with the illegal means while bringing the law in motion by their own will; that the learned lower Courts did not take into consideration that during cross-examination, the Complainant as well as Fazal Mehmood, S.I have categorically admitted that they found no proof during investigation/inquiry which could connect the Convict/Petitioners with the alleged commission of offence; that the conviction of the Convict/Petitioners is result of non-reading and misreading of evidence; that the learned lower Courts have failed to appreciate that there are glaring contradictions and inconsistencies in the

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evidence of prosecution witnesses; that prosecution has miserably failed to prove charge against the Convict/Petitioners through cogent and confidence inspiring evidence; that the reasons for conviction of the Convict/Petitioners are neither in accordance with law nor based upon the well settled principles of law applicable; that the learned Courts below have not applied their judicial mind while deciding the matter; that the Impugned Judgments have been passed in violation of the case law applicable and the facts of the case; and that the instant Petition may kindly be accepted and Impugned Judgments may kindly be set-aside.

8.Learned Assistant Attorney Generals (“AAGs”) argued that the prosecution has proved the case against the Convict/Petitioners beyond any shadow of doubt. The Convict/Petitioners being beneficiary of the whole transaction are equally liable with the accused namely John Ebuka Okeke alias Khadim and there is sufficient evidence available on record which could reasonable connect the Convict/Petitioners with the commission of the offence with the principal accused i.e. John Ebuka Okeke.

9.The learned counsel for the Convict/Petitioners as well as the AAGs have been heard and record perused with their able assistance.

10.Learned counsel on behalf of the Convict/Petitioners emphasized on the point that there is no evidence of any link between the Convict/Petitioners and Daniel Jones, Victor Mortel, Joseph Frankin and Philip Richard. Similarly, there is no evidence of any link between the Convict/Petitioners and the Complainant. In this respect, statement of the Complainant [Qareeb-ur-Rehman] (PW-1) is of great importance. The learned counsel deposed that co-accused demanded different amount from him and he transferred Rs.1,11,00,000/- in total from which Rs.12,01,760/- were transferred in account No.0010044036970013 ABL of Muhammad Yousaf (Petitioner in Crl. Revision No. 180/2024) and Rs.14,15,620/- in account No.23447106215803 maintained with Habib Bank Limited (“HBL”) of Rehan Akbar (Petitioner in Crl. Revision No. 173/2024). Now it is to be seen as to whether statement of the Complainant is supported by documentary evidence. Saif-ur-Rehman, Manager, HBL (PW-3) produced bank record Ex.PW-3/A/1-31 relating to Account No.2344-71062158-03 of Rehan Akbar (Petitioner in Crl. Revision No. 173/2024). As per this record, the

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Complainant transferred Rs.150,000/- in account of Rehan Akbar on 08.11.2017 and Rs.550,000/- on 13.11.2017. Similarly bank account of Muhammad Yousaf (Petitioner in Crl. Revision No. 180/2024) has been brought on record as Ex.PW-6/D/1-41. The Complainant has produced receipt of Allied Bank Limited Ex.PW-1/D/2-4 according to which Rs.1,201,707/- were deposited in account of Muhammad Yousaf by the Complainant on 06.11.2017. Similarly the Complainant has produced receipt of HBL according to which Rs. 150,000/- were deposited in account of Rehan Akbar (Petitioner in Crl. Revision No. 173/2024) by the Complainant on 08.11.2017. As per receipt of HBL, Rs.550,000/- were deposited in account of Rehan Akbar by the Complainant on 13.11.2017. These receipts of HBL tally with the bank statement of Rehan Akbar as mentioned above. In this way, the prosecution has been able to prove that the Complainant has deposited the amounts in Convict/Petitioners’ accounts.

11.The arguments put forth by the Convict/Petitioners' counsel, stating that there is no specific allegation in the charge framed by the learned Trial Court and that the prosecution failed to establish any connection between the Convict/Petitioners and the Complainant, is valid as it is evident from the record the Convict/Petitioners' involvement is solely limited to the use of their bank accounts in the commission of the offence. The learned Trial Court sentenced the principal accused, John Ebuka Ekike, a Nigerian national, to two years of imprisonment and imposed a fine of Rs. 5,00,000/-, with an additional six months of simple imprisonment in default of payment of the fine, for the offence under Section 14 of PECA. In contrast, the Convict/Petitioners were awarded a similar sentence under the same Section, despite the fact that the evidence presented by the prosecution clearly shows that only the Convict/Petitioners' bank accounts were used in the execution of the crime.

12.For what has been discussed above, it can safely be concluded that the learned counsel for the Convict/Petitioners have failed to point out any illegality or irregularity in the Impugned Judgments. Hence, the instant Revision Petitions are dismissed. However, this Court is of the view that the punishment provided to the principal accused and the present Convict/Petitioners does not commensurate in accordance with the role as the role of the Convict/Petitioners is that their bank accounts have been used for the commission of the offence and

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it is therefore, reduced in the circumstances, to one (01) year imprisonment and fine of Rs.100,000/- (rupees one lac) and in default of payment thereof to further undergo thirty (30) days simple imprisonment in the offence under Section 14, PECA. Reliance in this regard can safely be placed on Iftikhar Ahmed versus The State, 1986 MLD 2406, M. Yamin versus The State, 1986 MLD 827 and Sanata and another versus The State, 1985 PCrLJ 2395. Benefit of Section 382-B, Cr.P.C is extended to the Convict/Petitioners.

13.File be consigned to record.

( MUHAMMAD AZAM KHAN)

JUDGE

**//Kamran//**