FARHANUL HASSAN Versus State

ZULFIQAR AHMAD KHAN, J.--- Through captioned criminal appeal under subsection (1) of section 10 of the Offences in respect of Banks (Special Courts) Ordinance, 1984, appellant Farhanul Hassan has questioned the legality and propriety of his conviction vide impugned judgment dated 28.08.2012, passed by the learned Special Court (Offences in Banks) Sindh at Karachi in Case No. 05/2011, whereby appellant was convicted and sentenced in FIR No.23 of 2010, under sections 420/467/471/34, P.P.C., lodged at PS FIA CBC, Karachi, to undergo for R.I. 7 years and to pay fine of Rs.30,00,000/- and in case of default of payment of fine, to suffer for S.I. for 21 months. However, benefit under section 362-B, Cr.P.C. was extended to the appellant.

2. Relevant facts emanated from FIR are that a written complaint dated 05.06.2009 was floated to FIA by complainants M/s. Naeem Ahmed, Unit Manager, Standard Chartered Bank Ltd. and Jameel Ahmed, Manager Finance of M/s. Green Star that fraud was committed with account No.08-8129460-38 of M/s. Green Star maintained at WTC Clifton Branch. It is averred that two cheques bearing No.29790 and 29791 with forged signatures aggregating to Rs.6 million were cleared which were not issued by the company and amount was paid to Muhammad Ejaz who was beneficiary of the amount and received the cash illegally, and subsequently account of accused Muhammad Ejaz was blocked by the bank.

3. On completion of investigation, both accused were Challaned before the Court for adjudication, where to substantiate the charge, prosecution has testified Naeem Ahmed as PW-1 who produced copies of complaints, seizure memo and other documents, Syed Kashif Raza as PW-2, Syed Muhammad Anees-ur-Rehmen as PW-3, Abdul Saleem as PW-4, Jameel Ahmed as PW-5, Sufi Raghib Mehmood as PW-6, who produced two deposit slips, three cheques and seizure memo, Syed Nadeem Hussain Abbas as PW-7, Ali Shahab Dahar as PW-8, Muhammad Saifurehmen Wahidi as PW-9 and Investigating Officer Saifullah Jokhio as PW-10.

4. Statement of accused/appellant under section 342, Cr.P.C. was recorded vide Ex:20, whereby he has denied the allegations of committing fraud and forgery and claimed to be innocent. He further emphasized that he has no concern or access over the subject cheques in the company which were in safe custody of PW Saifurehmen and he has not peculated the alleged cheque. He further asserted that there is no direct evidence against him, hence, he may be acquitted from the charge. However, at conclusion of the trial, appellant was convicted and sentenced as referred supra.

5. Appellant, at the very outset, has contended that he is innocent and has been implicated falsely with ulterior motives; that learned trial Court has failed to appreciate the evidence adduced by the prosecution properly, as neither alleged forged cheques were in his reach nor any amount was transferred in his account nor he is beneficiary of the alleged encashed amount; that no action was initiated by the Bank against the officer maintaining the safe custody of cheque books, and had not reported instantly regarding missing of two cheques to the high-ups; that resignation was obtained from him without issuing any warning and after about six months, he was falsely involved in case, and even then he has been wrongly convicted by the learned Special Judge.

6. While controverting the above submissions, learned counsel for the complainant has contended that main culprit Ejaz had committed the alleged offence with assistance of the appellant and they had defrauded the Bank and M/s. Green Star by encashment of Rs.6 million; that due to poor performance and lack of interest in duties, appellant was asked to tender his resignation from the service on 24.12.2008; that PWs have implicated the accused regarding commission of the alleged offence and considering the iota of evidence adduced by the prosecution, learned Special Judge had rightly convicted them; that no tangible ground or non-appreciation of evidence has been pointed out by the appellant, therefore, instant appeal being devoid of any merits is liable to be dismissed.

7. Learned DAG for the State adopted the arguments advanced by learned counsel for complainant and urged that prosecution has established its case against appellant by adducing the strong evidence supported with relevant record, hence impugned judgment does not call for any interference.

8. We have heard the parties at length and scanned the material available on record prudently. It would be appropriate to have a glance upon the relevant portions of the evidence adduced by the prosecution.

9. PW-1 Co-complainant Naeem Ahmed, Audit Officer and PW-2 Kashif Raza, Clearing Officer have deposed on same lines that two cheques amounting to Rs.6 million were presented by ABL DHA. Branch for clearing through NIFT, and they verified the signature of account holder, amount in words figure, date, genuineness of stationery of the cheques and also verified the balance of account holder and same were cleared after scrutinizing. PW-3 Syed Muhammad Anisurehman, Clearing Officer has deposed that cheque was deposited for clearance which was scrutinized by him and it was forwarded to second stage and was cleared as per bank procedure. PW-4 Abdul Saleem, Team Leader has deposed that cheque of Rs.4 million was received and as per procedure said cheque was verified but no lacuna was found in cheque, therefore, same was processed and cleared. PW-5 Jameel Ahmed of company has deposed that in December 2008, they found two cheques for Rs.6 million were debited from their account which were issued in the name of Muhammad Ejaz. He admitted that bank supplied statement of account on daily basis through E-mail which was examined by him. PW-4 Sufi Raghib, D.G. Finance has deposed that in March-2009, PW Jameel informed about two payments of Rs.6 million from their account, however, he admitted that subject cheques were stolen from the custody of PW Saifurehman but he has no personal knowledge that who had prepared those cheques and signed, while Farhan was his sub-ordinate and on 24.12.2008, resignation was obtained from him.

10. Similarly, PW-8 Ali Shahab Dahar, Asstt. Manager has stated that accused Ejaz had opened his account which was personal and not in the name of partnership, while Farhan accompanied him and posed himself as Nadeem and partner in business of shipbreaking, then on 11.12.2008 both accused visited their branch, and on 19.12.2008 Farhan deposited two cheques of Rs.6 million. PW-9 Muhammad Saifurehman has deposed that he was custodian of cheque books, lockers of the company and cheques were being prepared on Oracle Finance System and if any cheque was missing from serial, same was indicated by the system. He admitted that two cheques were missing from cheque book leaves/bunch but he has no knowledge if those were stolen from his custody, while in an internal inquiry management didn't take action against him. He confirmed that he received daily statement of account from the bank through e-mail and after examination same was sent to PW Sufi Raghib for scrutiny. I.O. Saifullah Jokhio received complaint dated 05.06.2009 from the company but registered FIR No.23/2010 on 20.12.2010 without explaining the factum of delay. However, he admitted that no PW has deposed that accused Farhan had stolen said cheques.

11. We have observed through the evidence referred supra that PW Saifurehman was custodian of the cheque books and lockers of the company and cheques were being prepared on auto generated Oracle Finance System. It is an astonishing fact that PW Saifurehman was unaware if two leaves were stolen from cheque book pages lying in his custody, and even he never made any written complaint to the competent authority regarding missing or theft of said cheques or lost of the keys of locker. However, he admitted that bank supplied statement of account on daily basis through E-mail and after examination and verification of the said statement, he delivered the same to PW Sufi Raghib for further verification. Similarly, PW Sufi Ragib has deposed that in March-2009, complainant Jameel Ahmed had informed about encashment of two payments of Rs.6 million from their account, while accused Farhanul Hassan was working under his sub-ordination but on 24.12.2008 forced resignation was obtained from him.

12. It is significant to mention that encashment of Rs.6 million from the account of the company on the same day was not an ordinary or routine cash transaction and such huge difference and shortfall of the cash from the total amount could have been glanced easily by the senior officers of the company. The alleged offence occurred on 22.12.2008, but M/s. Green Star issued first letter dated 02.04.2009 to the bank regarding encashment of two forged cheques and thereafter a written complaint was floated by the complainants to FIA on 05.06.2009, but FIR No.23 of 2010, was lodged on 20.12.2010. Undeniably, no complaint was made to the bank promptly nor matter was reported to FIA instantly to threshold the truth. Moreover, none of the PWs has furnished any plausible explanation or unavoidable circumstances for causing delay of about 2 year in lodgment of FIR despite knowledge of huge fraud, thus inordinate delay to approach the FIA could not be ignored as a routine matter particularly when none of the officer/official of the company was held responsible for the missing or preparation of alleged forged cheques or any act of negligence on the part of concerned officials regarding failure from taking adequate measures to ensure the safe custody of the cheque books and functioning of oracle finance system. In the case of Hajan and another v. The State 2014 PCr.LJ 1123, it was observed that "delay in the lodgment of FIR must be explained plausibly, if complainant fails to furnish the circumstances beyond his control, or sound justification in this regard, the allegations levelled in FIR would be presumed to the result of deliberation, negotiation, discussion and afterthought with sole drive and ulterior motive to get accused convicted, thus such deliberate delay could not be ignored in routine manner". In the case of Tor Jan alias Jag v. The State 2012 PCr.LJ 780, it was held that "undue, unreasonable and unexplained delay in registration of FIR leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied in order to avoid criticism of the report as being manipulated and result of deliberation and consultation". Consequently, we are of the considered view that delay in lodgment of FIR is fatal to prosecution case, and there are strong presumption for consultation, improvements and manipulation with ulterior motives to safe guard the actual culprits and such deliberate negligence attracts adverse conjecture against the demeanor of the company.

13. While adverting to the merits of the case, admittedly cheques were being issued through auto generated Oracle Finance System and in case of missing of any cheque from the series of cheque book, said system was indicating the serial number of missing check, nevertheless PW Saifurehmen has admitted in his evidence that no such indication was flashed on the system that two cheques were missing from the serial of leaves. Co-complainant Naeem Ahmed and PW Kashif Raza have candidly admitted that on receipt of cheques, they verified the signature of account holder, amount in words figure, date, genuineness of stationery of the cheque and also verified the balance of account holder and then said cheques were cleared and passed after scrutinizing. Their such stance was also maintained by PW Abdul Saleem that as per procedure said cheques were verified and cleared and remittance was credited to ABL, DHA Branch, as no lacuna was found in those cheques.

14. Undoubtedly, account was opened in the name of accused Muhammad Ejaz which was single handed account and not a partnership account. Both cheques were issued in the name of accused Ejaz and same were deposited in his account and subsequently amount was encashed from said account on 22.12.2008. In the case of Hajan and another (referred supra), it was further held that "prime responsibility of the Court is to examine strictly the evidence adduced by the prosecution as a whole and not in piecemeal only to the extent of alleged offence to conclude the same being trustworthy and confidence-inspiring. Each and every coin of doubt inust be deposited in the account of defence, and even one stroke of doubt is sufficient to demolish the entire prosecution structure, irrespective of heineousness of the alleged offence". In the case of Qasim Ali Malik v. The State , 2012 PCr.LJ 124, it was observed that "ocular account produced by the prosecution did not formulate confidence-inspiring or reliable incriminating material against accused for cheating by personation, forgeiy, using as genuine a forged document". It is well established that accused could not be convicted on probabilities and high presumptions nor mere heinousness of the offence could be made basis for onviction of the accused until and unless any strong incriminating evidence is adduced by the prosecution. In the case of Salim Javed Durrani v. The State , 2005 PCr.LJ 22, it was held that "there are three stages of criminal act i.e. first the preparation, second the taking steps for its commission i.e, attempt to commit an offence and third, the causative effects i.e, consummation/completion of criminal act; but above all intension/mens rea was the most essential and integral part of a crime. An intension though could be inferred from the act of an accused, but manifestations must provide clear link therewith". It is worthwhile to mention that none of the PWs has deposed against appellant regarding commission of theft or preparation of forged cheques of the company. The sole role assigned to appellant by PW Shahab Dahar, Assistant Manager was that co-accused Muhammad Ejaz had opened his account in their branch, while appellant Farhan had accompanied him as Nadeem being a partner in the business of ship breaking, and thereafter he had deposited a cheque of Rs.2 million in account of Muhammad Ejaz on 19.12.2008. Nevertheless, despite the installation of CCTV camera in the bank, no such footage has been produced during the course of investigation as well as before the learned Special Court to substantiate such allegations, thus mere verbal stance and allegations have no legal weight for consideration.

15. Conversely, resignation was obtained from appellant on 24.12.2008, and till that date neither any action was initiated against accused nor matter was reported to the bank or police, however, after span of about four months, a letter was sent to the bank alleging the encashment of two forged cheques despite of receiving statement of account on the same day. Indeed, appellant had no direct excess to the cheque books kept in safe custody nor he had any nexus with preparation of cheques through auto generated oracle finance system nor prosecution has demonstrated any credible and inspiring confidence iota of evidence to establish the guilt of accused regarding commission of the alleged offence.

16. Considering the above circumstances and identical case law, we are of the view that no tangible evidence has been produced by the prosecution to establish the direct or indirect involvement of appellant regarding the commission of the alleged offence and has failed to bring the guilt home to the accused Farhanul Hassan beyond any shadow of doubt. Consequently, by extending benefit of doubt, instant criminal appeal stands allowed and the impugned judgment dated 28.08.2012 passed by the learned Special Court (Offences in Banks) is set aside and appellant Farhanul Hassan is acquitted from the charge.

These are detailed reasons for the short order dated 20.12.2017, whereby instant criminal appeal was allowed by us and appellant was acquitted from the charge.

HBT/F-11/Sindh Appeal allowed.