STATE Versus MUHAMMAD HAROON AND 2 OTHERS
1. The accused have been tried on the charge of hatching a plan to defraud the Stock Exchange Branch of U.B.L. and in pursuance of their said plan of having opened different accounts with different banks, where cheques for large amounts drawn on their account (s) with the Stock Exchange Branch (in which only a meagre amount was maintained) were deposited for collection, which cheques on being sent to the Stock Exchange Branch, (where accused Haroon was working as Machine Operator) were not posted in the account on which they were drawn but were destroyed, and on the strength of such cheques the amounts specified therein were withdrawn from the Banks where the cheques were deposited. This plan is said to have been in operation for a period of six years from 1980 upto February 1986, during which period the Stock Exchange Branch is said to have been defrauded of a total amount of Rs.97 lacs. In respect of each such year a separate case has been instituted and separately tried. Thus in all there are six separate cases against the persons said to have been involved in the aforesaid plan. Accused Haroon, Abdul Qader and Mohammad Munaf have been involved in all the six cases, Abdul Majid in all the cases except the cases pertaining to the years 1980 (9/A of 1985) and 1985 (9/E of 1985), Mohammad Amin in the ca6es pertaining to the years 1981 (9/B of 1985), 1982 (9/C of 1985) and 1983 (9 of 1985) and Abdul Qudus in the cases pertaining to the years 1983 (9 of 1985), 1984 (9/D of 1985) and 1985 '9/E of 1985). The following is the chart of the different accounts opened by the accused, the branch/bank where the account was opened, the date on which the account was opened and the names of the persons/ by whom the account was opened.
2. No. and name of the
3. Account
4. Bank/Branch where opened
5. Date of opening
6. Account
7. Names of person
8. Opening Account
9. (1)No.2218 National Medical Store
10. Stock Exchange
11. Branch of U . B . L .
12. 22-11-80-
(i) Mohd. Munaf
(ii) Abdul Kader.
(2) No. 2448 M/s. Rehmani Commission Shop.
13. -do-
14. 7-4-1982
(i) Abdul Majid
(ii) Mohd. Amin
(iii) Mohammad
15. Haroon.
(3) No.2261 M/s. Yousuf & Nasir Co.
16. -do-
17. 2-4-1981
(i) Mohd. Amin
(ii) Abdul Majid.
(4) No. 123-G Mohd. Haroon
18. -do-
19. 22-4-1972
20. Mohd. Haroon.
(5) No. 12922-1 Mohd. Haroon Rehmani
21. Habib Bank
22. Keamari Br.
23. 12-2-1980
24. Mohd. Haroon
25. Rehmani.
(6) No. 797
26. National Medical Store
27. Habib Bank
28. Nayabad Br.
29. 23-9-1981
30. Abdul Majid.
(7) No. 564 Yousuf Nasser and Co.
31. M.C.B.
32. Soldier Bazar
33. Branch
34. 15-4-1981
(i) Mohd. Amin
(ii) Abdul Majid.
(8) No. 1118 Yousuf Medical and General Store
35. U.B.L. Federal
36. 'B' Area, Karim- abad Branch.
37. 26-10-1982
(i) Mohd. Haroon
(ii) Abdul Qudus
(9) No. 187 Rehmani Commission Shop.
38. Muslim
39. Commercial Bank
40. AI-Karam Square
41. 20-10-1981
(i) Haroon
(ii) Abdul Majid.
42. Although some common points are involved in all the cases and arguments were addressed by the learned Prosecutor and the learned counsel for the accused in respect of the six cases generally as well as in respect of each individual case, separate judgments are being given in respect of each of the six cases, though for obvious reasons each judgment will touch upon the common points in so far as they are pertinent to the case being dealt with as well as deal with the specific points peculiar to that case.
43. The fraud is said to have been detected on 18th February, 1985, when P.W. Arif Rashid, who was the Manager of the Stock Exchange Branch at that time, checked the balance book of the Branch with the C.D. ledger and found that they did not tally and there was a difference in the total amount. He reported this matter to the Circle Executive through his letter, dated 18-2-1985 (Ex.2/B) which he personally took to the Circle Executive. 1n consequence of his report three officers of the Bank, namely Zaki Ahmad, Shamshuddin Khan and Wazarat Karim came to the Stock Exchange Branch to investigate. When Manager Arif Rashid returned to the Branch, accused, Haroon is said to have voluntarily approached the Manager and made' an oral as well as written confession of his guilt in the presence of the aforesaid three officers. The written confession, which is in the hand of accused Haroon, is reproduced hereunder: ---
44. Subsequently, on 4-3-1985, accused Haroon made a detailed judicial confession before Magistrate Nazar Muhammad Baloach. The confession is reproduced in extenso in the Annexure 'I' to this/ judgment.
45. This judgment is in respect of the alleged criminal activities of the accused in the year 1980, the first year of the operation of the alleged plan to defraud the Stock Exchange Branch of U.B.L During the said year accused Haroon deposited 11 cheques for a total amount of Rs.3,73,275 in his Account No.12922-1 with the Habib Bank, Keamari Branch, through the 11 deposit slips, Ex. 2/G to 2/G-10. Ten of those cheques were drawn on accused Haroon's own Account, No.123-G, with the Stock Exchange Branch, where this accused was working, while one cheque for Rs.one lac, which was deposited under the deposit slip, Ex.2/G-10, was drawn on Account No.2218 with the Stock Exchange Branch, which was joint account of accused Abdul Qader and Mohammad Munaf. I have prepared a statement showing the exhibit Nos. of the deposit slips, the numbers' of the cheques deposited under each deposit slip with the account number on which the cheques are drawn, the account number and the branch at which the cheques were deposited, the Bank or branch on which such cheques were drawn and the amount of each such cheque, which statement is appended to this judgment Annexure 'II'. Credit for the amounts of these 11 cheques has been given by the Keamari Branch of the Habib Bank in Account No.12922-1 of accused Haroon, though these cheques have not been posted in or debited to Account No.123-G or 2218 of the Stock Exchange Branch. In fact these cheques are missing from the said Branch and are said to have been destroyed by accused Haroon. The amounts of these 11 cheques on their being credited into Account No.12922-1 of accused Haroon with the Keamari Branch of the Habib Bank were withdrawn by accused Haroon through the 55 cheques Ex.12/A to Ex.12/A-54.
46. The prosecution have examined 11 witnesses in support of their case against the accused. They are: (1) Arif Rashid, Manager of the Stock Exchange Branch in 1985; (2) Zaki Ahmed, Assistant Vice-President and Zonal Head of U. B. L.; (3) Abdul' Razak, who gave shop on plot No.421/3, Karimabad, Federal 'B' Area, on,' rent to Abdul Qudus (brother of accused Haroon) and Sattar (not an accused in this case) for running a Medical Store therein, under the name of Yousuf Medical Store, under the rent agreement Ex.4/A; (4) Abdul Majid, Manager of the Stock Exchange Branch from September 1980 to August 1983; (5) Syed Ahsan Hussain, Officer at the Stock Exchange Branch from 1978 to 1985 and Supervising Officer of accused Haroon; (6) Magistrate Shanker Lal, who recorded the 164, Cr.P.C. statement of PW. Haji Ahmad; (7) Investigating Officer Syed Shahid Hussain; (8) Mohammad Hanif Motan, who was employed as Cashier in the Stock Exchange Branch of the U. B. L. from 1979 to 1983; (9) Haji Ahmad, who has testified that accused Haroon and Munaf, over a period .of two months, had given him an amount of Rs.7.50,000 in cash for purchase of iron on their behalf which amount he had subsequently produced before the F.I.A; (10) Magistrate Nazar Mohammad Shaikh, who had recorded the judicial confession of accused Haroon on 4-3-1985, and (11) Abdul Razak Kapadia, who was working as an officer in the Keamari Branch of Habib Bank in 1980-1981. A very large number of documents have been produced by these witnesses, particularly Manager Arif Rashid, Inspector Shahid Hussain and Abdul Razak Kapadia.
47. All the 3 accused, in their statements recorded under section 342, Cr.P.C. have denied having hatched any plan or entered into a conspiracy to defraud the Stock Exchange Branch. Accused Haroon, however, has admitted that he was working as a Machine Operator ai the Stock Exchange Branch from 1970 to 1985, that in the year 1980 he had deposited in his Account No.12982-1 with the Keamari Branch of U.B.L. cheques of a total amount of Rs.3,73,275, through the 11 deposit slips, Ex.2/G to Ex.2/G-11, out of which 8 slips are in his own hand, and that the said amount was credited into his Account No.12982-1 with the Keamari Branch. He has further admitted that he withdrew the said amount from the aforesaid account through the 55 cheques Exs.12/ A to 12/ A-54. He has also admitted that he made the written confession Ex.2/ C before PWs Zaki Ahmad, Arif Rashid and Ahsan Hussain and the judicial confession, Ex.11/A, before Magistrate Nazar Mohammad Shaikh, but alleged that the former confession was made in the presence of the police and the latter confession was made because of police pressure. He has also denied that he had manipulated the supplementary sheets, Exs.2/K to 2/K-12 and stated that they had not been prepared by him. He has further alleged that the officers of the branch were responsible for the fraud.
48. Accused Abdul Qader and Mohammad Munaf have admitted that they did open the joint-Account No.2218 with the Stock Exchange Branch of U . B . L . but have explained that they did so at the bidding of accused Haroon by whom they were employed as salesmen at the National Medical Store owned by accused Haroon. No defence has been led by any of the accused.
49. The points which arise for determination in this case are: --
(1) Whether the accused hatched a plan to defraud the Stock Exchange of U.B.L ?
(2) Whether the accused or any of them practised fraud and deception upon the Stock Exchange Branch and Habib Bank?
(3) Whether on account of the fraudulent cheques deposited by the accused under the deposit slips, Exs.2/G to 2/G-10, an amount of Rs.3,73,275 was wrongly credited into Account No.12922-1 of accused Haroon with the Keamari Branch of H.B.L. which was dishonestly withdrawn by accused Haroon through the 55 cheques Exs.12/A to 12/A-54 ?
(4) Whether accused Haroon wilfully and with intent to defraud falsified the accounts of the Stock Exchange Branch ?
50. My findings on the above points and the reasons therefore are as follows: -
51. Now as regards accused Abdul Qader and Munaf, admittedly they have neither deposited the cheques in Account No.12922-1 under the deposit slips Exs.2/G to 2/G-10 nor have they issued any of the cheques Ex.12/A to Ex.12/A-54, by which moneys were withdrawn from the said account. There is also no evidence to show that they received any of the amounts which were so withdrawn. In order to saddle these two accused with liability for the illegal or criminal acts which are alleged to have been committed by accused Haroon, it must be shown that these two accused had either common intention or conspired with accused Haroon to defraud the Stock Exchange Branch or otherwise aided or abetted him in doing so. As, observed by Anwarul Haq, C.J. in Zulfiqar Ali Bhutto v. State P L D 1979 S C 53 at p.93.
52. "In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed or assented to by him; nemo reus est misi mens sit rea ..Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of his associates in carrying out the objects of the conspiracy and anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purposes of proving the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design."
53. In Maqbool Hussain v. State P L D 1960 S C 382, the Supreme Court observed: -
54. "A plain reading of this section (section 10 of the Evidence Act, now replaced by Article 23 of the Qanun-e-Shahadat Order, 1984) makes it clear that apart from the act or statement of the conspirator some prima facie evidence must exist of the antecedent conspiracy in order to attract section 10."
55. In H. B. Gill and another v. The King A I R 1948 P C 128, the Judicial Committee of the Privy Council cautioned:
56. "But it appears to their Lordships that just as a trial Judge may admit evidence under section 10, when he has such reasonable ground of belief as is postulated, yet must reject it at, a later, stage of the trial if that reasonable ground of belief is displaced by further evidence."
57. The Supreme Court of India, in State of U.P. v. Iftikhar Khan and others, 1973 1 S.C.C. 512, has observed that to convict an accused of an offence, applying section 34, it is necessary to establish that the criminal act was done in concert pursuant to a pre-arranged plan. While recognizing that it is difficult, if not impossible, to procure direct evidence to prove the intention of a person and therefore Courts, in most cases, have to infer the intention from the act or the conduct of a particular person or from the other relevant circumstances of the case, it has cautioned that the inference of common intention within the meaning of the term in section 34, should never be reached unless it is a necessary inference deducible from the circumstances of the case.
58. In the instant case there is no direct evidence of the meeting of the minds or participation in a criminal act on the part of accused Abdul Qader and Munaf. The only pieces of evidence which have come on record against them are:
(1) That they opened Account No. 2218 with the Stock Exchange Branch;
(2) That cheque No.946784 for Rs. one lac, which was deposited for collection under the deposit slip Ex.2lG-10 with the Keamari Branch of Habib Bank, was apparently drawn on the aforesaid account;
(3) That according to P.W. Abdul Majid, who was Manager of the Stock Exchange Branch from 1980 to 1983, accused Munaf was a friend of accused Haroon and used to visit him off and on at the bank;
(4) That according to P.W. Haji Ahmad accused Haroon and Munaf had given him over a period of two months a total amount of Rs.7,50,000 for purchase of iron, which amount he had produced before F.I.A. Inspector Shahid Ali; and
(5) That according to the judicial confession of accused Haroon, he had purchased a flat for Rs.1,37,000 in Karimabad in the name of accused Munaf, that he had purchased a washing machine, colour T.V. and motor cycle for Munaf and had purchased a refrigerator and Honda motor cycle for accused Abdul Qader.
59. Now as regards the opening of the joint account by accused Mohammad Munaf and Abdul Qader with the Stock Exchange Branch that by itself does not indicate that they- had a common intention with accused Haroon or had entered into a conspiracy with him to defraud the Stock Exchange Branch unless it is shown that these two accused had used or operated that account for that purpose. The deposit of cheque No.946784 for Rs. one lac in Account No. 12922-1 of accused Haroon for collection would have been significant I if it had been established by whom the cheque was written or drawn. The cheque, however, has not been produced as it is stated to- have been destroyed. It is therefore not possible to say if it was written or signed by either of these accused. Similarly, the evidence of P.W. Abdul Majid in no way established common intention on the part of these two accused to defraud the Stock Exchange Branch. Since these two accused were employees of accused Haroon, there was good and lawful reason for them to meet the latter even at the Stock Exchange where accused Haroon was employed. So far as the evidence of Haji Ahmad is concerned according to him the amount of Rs.~7,50,000 was given to him about 21 years prior to his giving evidence in Court. As the evidence of the witness was recorded on 19-1-1987, it would seem that the amount was given to him some time in 1984. The instant case, however, pertains to the incidents of 1980 and not to those of 1984. Finally, so far as the Judicial confession of accused Haroon is concerned, apart from the fact that nowhere in his confession he has stated that he had hatched a plan or conspired with the other accused, accused Haroon appears to have acted like a modern Robin Hood scattering money left and right and bestowing goods oh almost everyone who came into contact with him. Moreover, in his confession he has stated that (illegible) On a careful appraisal of all the above circumstances, I am clearly of opinion that the prosecution have not been able to establish any common intention or criminal participation in any plan on the part of accused Munaf and Abdul~ Qader to defraud the Stock Exchange Branch.
60. It next falls to be considered the case of accused Haroon. There appears to be overwhelming evidence against him. The various pieces of evidence which have come on record against him are:
(i) although he was employed only as a Machine Operator, he had opened, either singly or jointly with others, as many as different accounts;
(ii) he had admittedly deposited the 11 cheques drawn on Accouni No.123-G (accused Haroon's own account) and Account No.2216 (joint account of accused Munaf and Abdul Qgder) with the Stock Exchange Branch of U.B.L.;
(iii) he had admittedly withdrawn the amounts of the above 11 cheques, when they were credited into his Account No.12922-1, with the Keamari Branch of Habib Bank, through the 5S, cheques, Exs.12/A to 12/A-54;
(iv) he is said to have dishonestly manipulated the supplementary sheets of the Stock Exchange. Branch, Exs.2/K to 2/K-12;
(v) his written confession, Ex.2/C; and
(vi) his judicial confession, Ex.11/A.
61. As will appear from the statement at p.2 of this judgment, accused Haroon had opened Account No. 123-G with the Stock Exchange of U.B.L. and Account No.12922-1 with the Keamari Branch of Habib Bank. It is these two accounts which have been used, except for the cheque drawn on Account No.2218, for defrauding the Habib Bank and U.B.L. during the year 1980. Through the 11 deposit slips Exs. 2/ G to 2/ G-10, 11 cheques for a total amount of Rs.3, 73, 275 were deposited in Account No. 12922-1 of accused Haroon. 10 of these cheques for a total amount of Rs.2,73,275 were drawn on Account No.123-G of accused Haroon with the Stock Exchange Branch of U.B.L. while the eleventh cheque for Rs.one lac was drawn on joint Account No.2218 of accused Munaf and Adbul Kader with the Stock Exchange Branch.
62. In addition to the above two accounts opened by accused Haroon solely in his own name, he had opened three joints accounts, namely Account No. 2448 in the name of Rahmani Commission Shop with the Stock Exchange Branch, Account No. 1118 with the Federal 'B' Area (Karimabad) Branch of U.B.L. and Account No.187, also in the name of Rahmani Commission Shop, with the Al-Karam Square Branch of M. C. B. Accused Haroon has not explained how and in what circumstances, being a mere Machine Operator at the Stock Exchange Branch of U. B. L., he had managed to open and was operating so many accounts at the same time. There is also no explanation forth coming how accused Haroon could manage to deposit in a single year cheques for a total amount of Rs.3,73,225. The most incriminating circumstance against accused Haroon on this point is that out of 11 cheques deposited by him for collection in his Account No.12922-1, as many as 10 cheques, for a total amount of Rs.2,73,225, were drawn on his own Account No.123-G with the Stock Exchange Branch. This fact is established through the 6 requisition slips, Exs.2/F to 2/F-6, signed by accused Haroon for cheques for operating his Account No.123-G. The ten cheques deposited by him for collection were from the cheque books and the series received by him on the above requisition slips. There is no explanation forthcoming why accused Haroon deposited cheques in one account of his which were drawn on another account operated by him. Moreover, the funds standing to the credit of the latter account were wholly in sufficient for encashing the cheques for the large amounts which the accused was withdrawing and which fact obviously must have been within his knowledge. Furthermore, not only the amounts of these 10 cheques were not debited to Account No.123-G, on which the cheques were drawn, but the cheques themselves are not available and are stated to have been destroyed by accused Haroon. Similar is the-position so far as the 11th cheque for Rs. one lac, drawn on Account No.2218 (the joint account of accused Munaf and Abdul Qader) is concerned, which cheque also was admittedly deposited by accused Haroon for collection in his Account No.12922-1 under the deposit slip Ex.2/G-10. The fact that all these 11 cheques were drawn on accounts with the Stock Exchange Branch, where accused Haroon was employed as Machine Operator, with the duty of making machine entries in the ledger accounts of account-holders is significant, as, the cheques, for the purpose of making entries in the ledger accounts of the drawers has to come in the normal course into his possession, giving him the required opportunity of not only manipulating the accounts but also of destroying the cheques. I will further deal with this aspect of the case when considering the written confession of accused Haroon, Ex.2/C, wherein he has explained how he manipulated the accounts and what he did with the cheques drawn by him and sent for collection to the Stock Exchange Branch.
63. The amounts of the 11 cheques deposited by accused Haroon for collection in his Account No.12922-1, though they were not debited to Accounts Nos.123-G and 2218, on which they were drawn, were admittedly withdrawn by accused Haroon through the 55 cheques, Ex.12/A to Ex.12/A-54. All these cheques admittedly bear his signature. PW. Abdul Razak Kapadia, who was working as officer at the Keamari Branch of H.B.L. at the relevant time, has testified that the amounts of 11 cheques deposited in Account No.1299-1 of accused Haroon, after clearance from the Stock Exchange Branch, were credited in the above account and were subsequently withdrawn by accused Haroon through the 55 cheques Ex.12/A to Ex.12/A-54.
64. Additionally there are three other pieces of evidence against accused Haroon, namely the manipulated supplementary sheets, Exs.2/K to 2/K-12 of the Stock Exchange Branch, his written confession, Ex.2/C and his judicial confession, Ex.11/A. As accused Haroon was employed in the Stock Exchange Branch of the U.B.L. and in his capacity as Machine Operator was required to prepare on the machine the supplementary sheets, giving the daily amounts of cash, cheques for clearance and transfer deliveries, there is strong presumption that in the normal course of his-duties he must have prepared the above supplementaries. Moreover, there is direct evidence to show that it was accused Haroon who had prepared those supplementary sheets. It has been testified by PW. Arif Rashid, who was working as officer at the Stock Exchange Branch from 1978 and thereafter from 1983 as Manager at the said Branch, and PW Syed 'Ahsan Hussain, the supervising officer of accused Haroon and thus were familiar with the handwriting, signature and initials of accused Haroon, that the handwriting on these 13 supplementary sheets is of accused Haroon and further all these supplementary sheets bear his initials on the totals made by him. This part of the evidence of the witnesses has not been challenged and there has been no cross-examination of the witnesses on this point. No doubt accused Haroon, in his statement recorded under section 342, Cr.P. C., has denied that he had prepared these supplementary sheets, but in view of the above 'evidence which I have no reason to disbelieve or doubt, coupled with the facts that these supplementary sheets pertain to the dates when the 11 cheques admittedly deposited for collection by accused Haroon in his account with the Keamari Branch were received for clearance at the Stock Exchange Branch and the amount shown in excess in the above supplementary sheets corresponds with the exact amount of the 11 cheques deposited by accused Haroon, I am satisfied that these supplementary sheets were prepared by accused Haroon. A more significant fact is that not only the total excess amount shown in these supplementary sheets corresponds to the total amount of the 11 cheques but further the amount of each cheque corresponds with the relevant supplementary sheet, as shown in the table hereunder, except that the excess amount shown in the supplementary Ex.2/ K-6 is double the amount of the cheques deposited for collection by accused Haroon on the said date.
65. Cheque No.
66. Amount of Cheque
67. Deposited
68. Under deposit slip
69. Date of deposit
70. Date and Exh.
71. No. of Supp-
72. Lementary
73. Amount shown in excess in
74. Supplementary
75. 1
76. 415853
77. Rs.9,775
78. Exh.2/G
79. 12-02-1980
80. 13-2-1980
81. Exh.2/K
82. Rs.9,775
83. 2
84. 416l82
85. Rs. 3,550
86. Exh.2/G-1
87. 26-03-1980
88. 26-3-1980 Exh.2/K-1
89. Rs. 3,550
90. 3
91. 416536
92. Rs.5,000
93. Exh.2/G-2
94. 23-03-1980
95. 24-3-1980 Exh.2/K-2
96. Rs.5,000
97. 4
98. 416540
99. Rs. 9,950
100. Exh.2/G-3
101. 02-07-1980
102. 8-7-1980
103. Exh.2/K-3
104. Rs. 9,950
105. 5
106. 0417896
107. Rs. 15,000
108. Exh.2/G-4
109. 23-08-1980
110. 24-8-1980 Exh.2/K-4
111. Rs. 15,000
112. 6
113. 417835
114. Rs. 30,000
115. Exh.2/G-5
116. 26-08-1980
117. 26-8-1980 Exh.2/K-5
118. Rs. 30,000
119. 7
120. 418564
121. Rs.50,000
122. Exh.2/G-6
123. 13-10-1980
124. 13-X-1980 Exh.2/K-6
125. Rs.10,0000
126. 8
127. 415567
128. Rs.50,000
129. Exh.2/G-7
130. 04-11-1980
131. 5-11-1980 Exh.2/K-10
132. Rs.50,000
133. 9
134. 418942
135. Rs.50,000
136. Exh.2/G-8
137. 11-12-1980
138. 11-12-1980 Exh.2/K-11
139. Rs.50,000
140. 10
141. 418945
142. Rs.50,000
143. Exh.2/G-9
144. 28-12-1980
145. 29-12-1980 Exh.2/K-12
146. Rs.50,000
147. 11
148. 946784
149. Rs.10,0000
150. Exh.2/G-10
151. 29-12-1980
152. Rs.10,0000
153. Next there is against accused Haroon the written confession, Ex.2/C, dated 18-2-1985, which has been reproduced in extenso at pages 3 and 4 of this judgment. This confession according to P.W. Zaki Ahmad, Vice-President and Zonal Head, was made and written by accused Haroon in his presence and in the presence of four other officers, namely Manager Arif Rashid and Badruddin, Shahzaman Khan and Wazarat Khan, who had come to the Stock Exchange Branch on being informed of the fraud committed in the branch by accused Haroon. Out of them P.W. Arif Rashid has been examined and another officer of the branch, P.W. Syed Ahsan Hussain, both of whom have testified that the confession was made in their presence. As P.W. Syed Ahsan Hussain was the officer under whom accused Haroon was working he would reasonably be expected to be present. All of them have testified that accused Haroon had first voluntarily made an oral confession and then made the written confession after Manager Arif Rashid had detected the irregularities and discrepancies in the balance book in respect of the C.D. ledger. Both Zaki Ahmad and Arif Rashid have testified that accused Haroon made the confession voluntarily and strongly denied that accused Haroon was made to execute the confession on account of threats and promises. No question was put to either witness as to the nature of the threats or promises or the person from whom they emanated nor was any question suggested to P.W. Ahsan Hussain that accused Haroon made the confession on account of threats /promises. No evidence also has been led by accused Haroon on this point. In fact in his statement recorded under section 342, Cr. P. C., he has given a somewhat different reason for giving the confession. According to him he made the confession in the presence of the police. There is no evidence whatsoever on record to support this allegation. Not even a single question has been suggested by the accused or his learned counsel to any witness suggesting the ; presence of the police in the bank at the time of the making of the confession by accused Haroon. Moreover, even, in his reply to the charge-sheet served upon him, which was submitted some time after 6th May, 1985, when the case against him was challaned and was pending trial in the Court of the Anti-Corruption Judge, he has not alleged that Police was present at the time of the making by him of the confession though he has alleged that it was taken from him by force.
154. In his confession, Ex.2/C, which has been written by accused Haroon in his own hand and signed by him, this accused has not only in clear and unambiguous words admitted having repeatedly drawn moneys from the bank by fraud but has also disclosed the mode in which the fraud was committed by him, which was to deposit in other accounts of his with different banks/branches cheques drawn on his account with the Stock Exchange Branch, and when these cheques were presented at the Stock Exchange branch for clearing, he used to destroy, the cheques and also used to credit/add in the supplementary, T.D. or clearing the very same amount and in this way the cash book used to be balanced and on the day when the ledgers used to be balanced, he used to short show in some account in the balance book the very amount that he had embezzled and drawn. The confession is corroborated on practically every material point by trustworthy and tangible evidence. These pieces of evidence are;
(1) The admitted deposit at the Keamari Branch of H.B.L. by accused Haroon under the deposit slips Exs.2/G to 2/G-9 of 10 cheques drawn on his Account No.123-G with the Stock Exchange Branch of U.B.L., and under deposit slip Ex.2/G-10 of a cheque drawn on joint Account No-2218 of accused Munaf and Abdul Qader with the latter branch.
(2) The fact that though the amounts of the above cheques were credited into Account No. 12922 with the Keamari Branch of H. B. L. the said amounts were not debited to Accounts No. 123-G and 2218 of the Stock Exchange Branch on which they were drawn.
(3) The manipulation of the Supplementary sheets Exs.2/K to 2/K-12, the amount of excess dishonestly shown in the said Supplementary sheets exactly corresponding with the amounts of the 11 cheques deposited under the deposited slips Exs.2./G to 2/G-10.
(4) The withdrawal by accused Haroon through the 55 cheques, Exs.12/A to 12/A-54, of the amounts from his Account Np.12922 with the Keamari Branch which were credited on the basis of deposit by him of the 11 cheques under the deposit slips Ex.2/G to 2/G-10.
(5) The judicial confession of accused Haroon recorded by Magistrate Nazar Mohammad on 4-3-1985 which is in detail and runs to 11 handwritten pages. The Magistrate has been examined. He has testified that the accused was brought to him for the purpose of recording his confession at 10 a.m. by the F.I.A. Inspector, that he had his hand-cuffs removed and directed the F.I.A. Inspector to leave the premises, that he enquired from the accused whether he had been maltreated by the F.I.A. to which question he replied in the negative, that he explained to the accused that he was a Magistrate and had been brought to him for recording his confession but he was not bound to make a confession, whereupon the accused stated that he wanted to make confession and was doing so voluntarily, that he thereafter gave time for reflection to accused Haropn from 10-5 a.m. to 12.30, during which time he was made'' to sit in the Court-room near him and F .I . A . V had no access to him, that after the aforesaid period of reflection he again called upon the accused and after satisfying him that the accused had no marks of injury or violence on his person and that he was making the confession voluntarily, he recorded his confession, appended the required certificate to the confession and sent the accused to judicial custody; as assured by him to the accused before proceeding to record his confession. According to the Magistrate it took him about 1 hour and 45 minutes to record the confession. I have carefully considered the evidence of the learned Magistrate, who had sufficient experience of recording confession as he had recorded 40 to 50 confessions, and am satisfied that the learned Magistrate took all reasonable precautions to ensure that the confession was given voluntarily.
155. In his confession accused Haroon has stated how he started on his career of defrauding the banks, which was when a friend of his, by name A . Karim, needed a sum of Rs.6, 000 to repay a loan of his deceased father and also to rent a house, and in order to help him, If though he did not have the money, he issued him a cheque for Rs.6,000 and when the cheque was received in the Stock Exchange Branch he destroyed the cheque and sent advice to the concerned branch though no debit entry of the amount was made in his account which in fact had no balance for encashment of the cheque. Accused Haroon has thereafter referred to the various accounts which he opened and through which he managed to defraud the bank of large amounts, part of which he used for his purposes, such as purchasing houses and flats, starting different businesses and renting and stocking shops and store rooms, etc. and part of the monyes so obtained by him he, gave to different persons (including the accused), whose names he has specified. Throughout the confession there appears to' run a strong current of exultation and sense of achievement and hardly any feeling of remorse or regret. This is a further circumstance which fortifies me in the view that the confession was made by accused Haroon voluntarily. The confession is not only voluntary but is, corroborated in material particulars by independent pieces of evidence., Apart from the oral and the written confession, Ex.2/C made by the accused to PWs Zaki Ahmad and Arif Rashid, and the circumstances (1) to (4) specified at page 18 of this judgment as corroborating the said confession, the judicial confession is corroborated by the following evidence:
(i) In the statement (Ex.2/I) of his Account No.12922-1, which accused Haroon had opened with the Keamari Branch on 12-2-1983, the very first debit entry, which is dated 16-2-1980, is payment of Rs.6,000 on cheque No.201851. This amount was paid on the basis of the credit entry, through clearance, of Rs.9,775, dated 13-2-1980. It may be mentioned that this credit entry corresponds with the first deposit slip Ex.2/G, under which accused Haroon had deposited `for collection on 13-2-1980 in his Account No.12922-1 Cheque No. 415853 for Rs.9,775 drawn on his Account No.123-G with the Stock Exchange Branch. The cheque bearing No.415853 is from the cheque book issued to accused Haroon as appears from the statement of his account Ex.2/E for his Account No. 123-G, but though the amount of this cheque is not debited to his Account No. 123-G nevertheless credit for the amount of the cheque has been given in his Account No. 12922-1 with the Keamari Branch, as the cheque was not returned (having been destroyed by the accused as stated in his written confession Ex.2/C and judicial confession Ex.12/A.) Reference to this cheque for Rs.6,000 is made by accused Haroon in the opening part of his judicial confession and he has stated therein that he had given it to his friend A. Karim to repay the loan taken by the latter's deceased father.
(ii) Accused Haroon in his judicial confession has referred to the various accounts which he opened or got opened in different names, including in the names of National Medical Store, Yousuf Nasir and Co., Rahmani Commission Shop and Yousuf Medical Store. Evidence regarding opening of these various accounts has been given by P.W. Arif Rashid and opening forms of these accounts have also been produced.
(iii) In his confession accused Haroon has named several persons to whom he gave monyes (specifying the amounts that he gave them) or for whom he bought properties, vehicles or household articles. Some of those persons have been examined. P.W. Hanif Motan, who was employed as cashier in the Stock Exchange Branch, has testified that accused Haroon had given him loan of Rs.50,000 while P.W. Haji Ahmed has stated that he was given an amount of Rs.7,50,000 by accused Haroon for business purposes. These are the exact amounts which accused Haroon has stated in' his confession as having been given to them by him. Both the witnesses had produced these amounts before F.I.A. Inspector, Shahid Hussain, who had seized the same. A number of other persons named by accused Haroon in his confession to whom he had given various amounts had voluntarily produced those amounts before Inspector Shahid Hussain.
156. Inspector Shahid Hussain has given the names of the persons who had Produced the amounts and also specified the amounts produced by them. The total amount recovered by inspector Shahid Hussain exceeds Rs. 18 lacs, including the amounts secured from Hanif Motan and Haji Ahmed. Inspector Shahid Hussain had also seized the car, scooters and motorcycles referred to by accused Haroon in his judicial confession. The rent agreement Ex.4/A in favour of Mst. Abida w/o accused Haroon in respect of the shop in which the latter had opened Yousuf Medical Store has been produced by P.W. Abdul Razak, whose wife, Mst. Rabia owns the shop.
157. While the learned prosecutor strongly supported the prosecution case against the accused and painstakingly took me through the various pieces of evidence against the three accused, particularly those against accused Haroon, those which were restricted in their application to the instant case as well as those which were common to all the six cases against the accused, Mr. Liaquat Merchant and Mr. Anger, the learned counsel for accused Haroon vehemently assailed the evidence against accused Haroon, particularly the written confession and the judicial confession, and strongly contended that the prosecution had been unable to establish the guilt of accused Haroon and that a correct appreciation of the evidence would indicate that the officers of the bank were responsible for and involved in the defalcations committed.
158. Mr. Liaquat Merchant submitted that the main evidence against accused Haroon is of Manager Arif Rashid and of Syed Ahsan Hussain, under whom Haroon was working, but their evidence should not be relied upon as there are material contradictions in their evidence as to the duties which were being performed by accused Haroon and further both of them were suspended and charge-sheeted by the Bank, indicating their involvement in the fraud. Now as to the duties of accused Haroon, it has been testified by P.W. Arif Rashid that though it is not the function of the Machine Operator to sign credit advices he can prepare them. It has similarly been stated by P.W. Ahsan Hussain that as C.D. incharge he was supposed to sign advices, which also required the signature of another officer, but because of the nice behaviour and co-operative attitude of accused Haroon, inspiring confidence, he used to write advices which he got signed from him. This witness, however, has further stated that it was the duty of the Machine Operator to prepare the daily supplementary sheets (which were thereafter signed by him), and to receive cheques from clearing department but he was required to check posting of cheques. Since P.W. Ahsan Hussain was the officer under whom accused Haroon was working he was in a better position than P.W. Arif Rashid to know what function exactly this accused was performing or had been assigned. Moreover, since the daily supplementaries were to be, prepared on the Machine, it is obvious that they were to be prepared by the Machine Operator though they were to be signed by the Officer-in-charge, who at the relevant time was P.W. Ahsan Hussain, who has admitted having signed the same. As to the involvement of P.Ws. Arif Rashid and Ahsan Hussain in the embezzlement, though they have admitted having been suspended and charge-sheeted by the bank, the charge against them was of negligence and lack of supervision and not of embezzlement of funds or fraud, as is clear from the charge-sheet, Ex.2/R, produced by P.W. Arif Rashid.
159. The main thrust of the arguments of Mr. Liaquat Merchant was against the written confession, Ex. 2/C, and the judicial confession, Ex.11/A. As regards the written confession, Ex.2/C, the learned counsel contended that accused Haroon was made-to write the confession under duress, threats and promises. The three witnesses to the confession, namely P.Ws. Zaki Ahmed, Arif Rashid and Ahsan Hussain have, however, strongly denied that any threats were given or promises made to the accused and have asserted that he made the confession voluntarily after P.W. Arif Rashid had detected wrong totalling in the balance book entries of 31-1-1985. P.W. Zaki, though an officer of the bank, is an independent witness. There was no reason for him to falsely accuse Haroon or be a party to extraction of a confession from him by threats or promises. Nothing has been alleged against him. The only circumstances which Mr. Merchant could refer in support of his contention that the confession was extracted from accused Haroon by threats and promises, were the assertion made in the confession that no one else except he was responsible for the embezzlement of the fraud in the bank and the statement of the accused before the Court that he made the confession in the presence of the police. However, there is no evidence whatsoever to indicate that police was present at the time of the making of the confession. In fact no such question was put to any witness. As regards the assertion of the accused in the confession that no one else but he was responsible for the embezzlement, which according to Mr. Liaqat Merchant accused Haroon was made to make in order to absolve the other officers of the bank, it may be pointed out that accused Haroon was very likely referring to the persons whom he had induced to open accounts, either jointly with him or otherwise, and through which accounts the embezzlement and the fraud was committed. In any case this statement in the confession neither indicates that it was made in the presence of police, as stated in Court by hi accused Haroon, or that it was extracted from him by threats or promises.
160. Mr. Liaqat Merchant assailed the judicial confession Ex.11-A, on the following grounds:
(1) The confession was recorded after accused Haroon was in the custody of the F.I.A. from 18-2-1985 upto 4-3-1985, a period of over 13 days.
(2) The confession refers to 58 transactions spread over a period of 5-6 years, and goes into intricate and minute details. It is impossible to believe that accused Haroon would have been able to give such a confession without having any notes or other papers. It was contended that looking to the length of the confession and the minute details contained in it, it was made on the basis of a paper given to the accused who merely read it out.
(3) The letter which the F.I.A. Inspector had given to the Magistrate for recording the confession has not been brought on record.
(4) The accused was brought in handcuffs, and even after his handcuffs were removed police was waiting outside, making the accused apprehensive.
(5) Comparison of the judicial and the extra-judicial confession discloses that there are substantial contrad4ctions therein.
(6) There does not appear to be corroboration of the judicial confession by independent evidence of the type required by Courts and law.
(7) The judicial confession was retracted by accused Haroon as soon as it was possible for him to do so, as appears from his reply to the charge-sheet, Ex.3/L-1.
161. In support of his above contentions, Mr. Liaquat Merchant relied upon the decisions reported as: (1) Indar Datt v. Emperor AIR 1931 Lah. 408 (2), Bhimappa v. Emperor A I R 1945 Bom. 484, (3) Sarwan Singh v. State of Punjab AIR 1957 SC 637, (4) Rahzan and another v. State P L D 1960 (W.P.) Lah. 24, (5) Hakim Gul v. The State P L D 1964 (W. P.) Peshland (6) 1985 M L D Kar. 604.
162. In Indar Datt's case, it was held by a learned Single Judge of the Lahore High Court that where a Magistrate hands over the accused to the Investigating Officer who is in attendance outside his room, and records the confession of the accused after he has been with the police officer for a few minutes, the procedure is not a proper one and reduces to a considerable extent the value of the confession. This decision is not at all applicable in the instant case as the learned Magistrate recording the confession has testified on oath that he had, on accused Haroon being produced before him by the F.I.A. Inspector, directed the Inspector to leave the premises, that he had made the accused to sit near him in the court-room, that the police had no access to him during the period given to the accused for reflection, that at the time that he questioned the accused and recorded his confession no one else besides him was present and that after recording the confession he had remanded the accused to judicial custody.
163. In Bhimappa's case, the accused who were sent to the Magistrate for recording of their confession remained in judicial custody for 21 to 52 days before their confession was recorded and no explanation was forthcoming why they had to remain in judicial custody for such long period before the recording of their confession. It was in view of these facts that a Division Bench of the Bombay' High Court held that the natural inference to be drawn is that the circumstances in which the confession was ultimately made were not such that any credence ought to be given to the confession as being of a voluntary character. The facts in the instant case are totally different and the above decision can have no application to it.
164. In Sawaran Singh's case A I R 1957 SC 637 the Supreme Court of India has observed that 'it would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to a person in any given case (before recording his confession). However, speaking generally, it would; we think be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded'. These observations possibly were made on the facts of that case. It was found that the accused was given only half an hour time for reflection before his statement was recorded. Moreover, the police Sub-Inspector who had taken the accused was apparently standing in the Verandah outside in the Magistrate's Office, and soon after the statement was finished the Sub-Inspector went to the Magistrate's room again. Furthermore, though the person of the accused showed some injuries, yet the learned Magistrate did not enquire how the accused came to the injured. Finally, it also appeared that some material points mentioned .in the confessional statement were not shown to be true. None of these special circumstances are present in the case. Moreover, our Courts have not laid down or even suggested such a period for reflection to be given to the accused before recording his confession. In Gul Jamal v. The State 1980 S C M R 654, the Supreme Court of Pakistan, while repelling the contention that the confession was involuntary, as sufficient time was not given for reflection, observed: as follows: -
165. "There is no hard and fast rule to prescribe the time for reflection. It is true that by way, of abundant caution, the Courts have held that sufficient time should be given for reflection but that cannot be pressed into service as an invariable practice. It is from the facts of each case that an inference should be drawn as to whether the time given was sufficient for reflection. In the present case almost all the incriminating pieces of evidence were collected before the 4th of February, 1975, a day after the arrest of the accused; and as the accused were ready, and willing to confess, their confessions were accordingly recorded on the 4th of February, 1975. In this connection the time given for reflection cannot be regarded as insufficient.
166. In the instant case time of reflection was given from 10-05 a.m. to 12-30 p.m. In Rahzan v. The State P L D 1960 (W.P.) Lah. 24 a Division Bench of the erstwhile High Court of West Pakistan observed: 'And once a Court finds that a confession is voluntary, conviction can be based on the same, provided it is true. However, as a rule of caution and prudence now firmly established, Courts have refused to record conviction on a retracted confession alone and have insisted on independent support of it by corroborative evidence on material particulars connecting the accused with the offence'. Similarly, it was held by a Division Bench at Peshawar in Hakim Gul v. State PLD 1964 (W.P.) Peshawar;
(a) That failure on the part of the Magistrate to inform the accused that he would not be sent back to police custody but to judicial lock-up makes the voluntariness of the confession doubtful, and (b) that a retracted confession by itself is not sufficient for conviction unless corroborated by material evidence. In the instant case, there is considerable independent evidence, which has been discussed in detail, to corroborate the judicial confession. Moreover, as observed by the Supreme Court of India in Sarwan Singh v. State P L D 1957 SC (Ind.) 555 At p. 564, what amount of corroboration would be necessary in a case would always be a question of fact to be determined in the light of circumstances of each 'ease.
167. As regards the point whether the Magistrate had intimated accused Haroon that he was a Magistrate, P.W. Nazar Muhammad has stated on oath that he had so informed the accused. This is also recorded in the confession itself.
168. On the point whether accused Haroon made the confession voluntarily or whether it was the result of coercion, threats or promises, I may refer to the observation of the Supreme Court of India in Hemari Devi Lal v . State of Ajmer to the effect that it must be affirmatively proved that such confession was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed. It however cautioned that the mere bald assertion by the prisoner that he was threatened or tutored or that inducement was offered to him, cannot be accepted as true without more evidence. In the instant case also there is not a particle of evidence in support of accused Haroon's allegation that he made the judicial confession due to police pressure.
169. In Tauqir Alam and others v. State 1985 M L D 604, the judicial confessions of the accused, which were recorded on the 4th day of their arrest, were considered vitiated and devoid of evidentiary value. But the interval of four days between their arrest and recording of their confessions was only one (and that too not the main) out of the several/factors on the basis of which the confessions were held to be devoid of evidentiary value. The High Court held in that case:
(1) that there was sufficient material available to show that the accused persons were maltreated and subjected to Aolence; (2) that the Magistrate after recording the confession handed them back to the same police which had brought them; (3) that the judicial confession showed that ail recoveries were made before the recording of the confession; and (4) that instead of there being independent evidence to corroborate the confessions such evidence was in fact inconsistent with the confessions, particularly in regard to committing rape on the victim. In this case, the factors which weigh...heavily with the High Court in rejecting the confessions are totally absent.
170. As regards the contention of Mr. Liaquat Merchant that since there was an interval of some 13 days between the arrest of accused Haroon and the recording of his judicial confession, it stands vitiated, I may point out that this accused had made a confession in his own hand on 18-2-1985 even before the lodging of the complaint against him. Moreover, the mere fact of the accused having been in police custody for some time before his confession was recorded does not itself make the confession inadmissible or devoid of evidentiary value. In Syed Sharifuddin Pirzada v. Sohbat Khan P L D 1972 SC (?) where the confession of the accused was recorded 13 days after his arrest, during which he was in police custody, it was observed by the Supreme Court of Pakistan that 'the fact that Solibat Khan was for some time in police custody does not lead to the conclU ion that he was tortured. Remaining of accused persons for some time in the police custody does not affect their judicial confessions'.
171. The upshot of the above discussion is that I hold
(i) that the prostitution have failed to establish b64ond~reasonable doubt their case against accused Abdul Qader and Munaf; and giving them the benefit of this doubt; I would acquit these two accused of the charges framed against them;
(11) that accused Haroon by practising deception and fraud on, U. B. L. (Stock Exchange Branch) dishonestly managed to receive from the said Branch, through the Keamari Branch of H. B. L., a total amount of Rs.3,73,275 and further falsified the supplementaries of the Stock Exchange Branch, Ex.2/K to 2/K-12, in order to cover up his fraud and has thereby committed offences punishable under section 420 and 477-A, P.P.C.
172. I Would accordingly sentence accused Haroon for the offence under section 420, P.P.C. to rigorous imprisonment for five, years and also to pay a fine of rupees eight lacs or in default of payment of the fine to suffer further R.I. for one year, and further sentence him for the offence under section 477-A, P.P.C, to rigorous imprisonment for five years. That two substantive sentences will run concurrently while the sentence in default of payment of fine will run consecutively. Accused Haroon has also been sentenced today, in Case No. 9/E of 1985 to R.I. for seven years under section 420 and a similar sentence has been imposed on him for the offence under section 477-A, P.P.C. The substantive sentences of imprisonment awarded in this case will also run, concurrently with the substantive sentences of imprisonment awarded to accused Haroon in that case. As accused Haroon has Continuously remained in custody from 18-21985 uptil today i.e. a period of almost 29 months, in computing the period of his substantive sentence of imprisonment, the period for which he has remained in custody shall be excluded, as provided in section 382-B. Cr.P.C.
173. Before closing this judgment I would like to commend the diligent, thorough and efficient investigation conducted in this case and the connected cases by F.I.A. Inspector Shahid Hussain and his ability in securing a substantial portion of the monyes embezzled as well as other properties stated to have been purchased from the embezzled funds.
174. I would also like to place on record the able assistance that I have received both from the learned prosecutor as well as the learned counsel for the defence in deciding this difficult case, which involved intricate points of fact and law. I particularly appreciate their willing assistance in the fairly quick disposal of this and the connected case.
175. S.A./15/Sp.B. Accused convicted.