MOHAMMAD UMAR Versus State

OMAR SIAL, J. ---On the 9th of December, 2011 at about 7:36 p.m. an entry was made in the banking system of the Tando Adam Branch of the Askari Bank Limited. Rs. 1.2 million was transferred to the account of Allah Bux by debiting the Bank's advance rent account. The money that was transferred into the account of Allah Bux, after a few minutes, was further transferred from his account that of a jeweler named Ghulam Haider Shaikh. The money was then withdrawn from the amount of Ghulam Haider Shaikh by himself and given to a fellow jeweler named Nadeem. Nadeem kept the money as being the sale consideration of gold he had sold to one Ghulam Ali Bohar.

2. Sajid Ali Jagirani, who was an officer in the Branch; Aneel Kumar, who was the manager of the Branch; Gul Mir, who was the cashier at the Branch; Mohammad Umar Khoso, who was the Operations Manager at the Branch; Mohammad Khan Bohar, who was the brother of Ghulam Ali Bohar (being the person who was the ultimate beneficiary of Rs. 1.2 million and Ghulam Ali Bohar himself were arrayed as the accused in the case, Ghulam Ali Bohar was declared a proclaimed offender whereas Aneel Kumar and Mohammad Khan Bohar were acquitted by the learned trial court. Sajid Ali Jagirani, Gul Mir and Mohammad Umar Khoso were convicted and sentenced as follows: a) Accused Sajjad Ahmed Jagirani son of Muhammad Pannah convicted under sections 409/34, P.P.C. and sentenced to suffer 7 years' R.I and fine of Rs.8 Lacs. In case of non -payment of fine he shall suffer S.I. for 1 year's more. b) Accused Gul Meer son of Muhammad Juman convicted under sections 409/34, P.P.C. and sentenced to suffer 7 years' R.I. and fine of Rs.8 lacs. In case of non-payment of fine he shall suffer S.I. for 1 year's more. c) Accused Muhammad Umer son of Atta Muhammad convicted under sections 409/34, P.P.C. and sentenced to suffer 7 years' R.I. and fine of Rs,8 Lacs. In case of non- payment of fine he shall suffer S.I. for 1 year's more.

3. The prosecution's case against Gul Mir is that his identity and password were used to effect the illegal transaction in the Bank's account whereas the case against Mohammad Umer Khoso is that his identity and password were used to "supervise" the illegal transaction. Sajid Jagirani is accused of having used the identities and passwords of the forenamed accused to actually effect the transaction in the Bank system.

4. The illegal transaction effected in the Bank's system is not denied. It is also not denied that the money ultimately found its way into the bank account of Ghulam Haider Shaikh, who withdrew the same and gave it to a fellow jeweler named Nadeem. Ghulam Haider Shaikh in his testimony said that Nadeem had come to him and told him that a customer of his (Ghulam Ali Bohar) wants to transfer money online for gold he intends to buy into an Askari Bank account. Ghulam Haider Sheikh thus gave Nadeem the details of his account in Karachi that he maintained with the Askari Bank. Rs. 1.2 million was transferred to it and the same was withdrawn by Ghulam Haider Shaikh and given to Nadeem. Nadeem's testimony corroborated that of Ghulam Haider Shaikh and after investigation it was determined that both Shaikh and Nadeem did not have any role in the crime committed.

5. It was an admitted position at trial that the identity and passwords of Gul Mir Brohi and Moham-mad Umer Khoso were used to effect the transfers from the Bank's account to the account of Allah Bux and then from Allah Bux's account to that of Ghulam Haider Sheikh. The Incharge of the Branch, Zubair Ali Samo, who was examined as the first prosecution witness at trial, testified that according to him the crime was committed by Jagirani and Khoso as Gul Mir had already left the Branch at the time the transfer was effected. His reasoning for implicating Jagirani appeared to be that it was Jagirani's last working day at the Bank and that Jagirani stayed in the Bank till 9:00 p.m. Samo conceded that he himself had left the Bank at 8:40 p.m. but he came to know that Jagirani was in the Bank till 9:00 p.m. through a recording of the CCTV camera. The footage of the CCTV camera that Samo relied upon was not produced at trial in evidence. The evidence that was produced at trial shows that Jagirani was to be relieved of his duties at the Bank at the end of the business hours on the 9th. It was not explained at trial by Samo as to why a person who was no longer in the service of the Bank was allowed to stay back at the Branch well after the close of banking hours. The statements upon which Samo relied to establish the transfers do not show the time or the identities used to effect the transfer. Maqbool Ahmed Soomro, who was the Area Manager of the Bank and who was examined as the fourth prosecution witness testified that Gul Mir had left the Bank at 7:20 p.m. whereas the entries in question were made at 7:36 p.m. and 7:50 p.m. He did not produce any evidence to support his assertion. Perhaps, he too relied on the footage of the CCTV which was not produced at trial.

6. Another aspect of the case we are perturbed about is the apparent negligence on the part of the Bank and its auditors. It was admitted by Soomro that "it is correct to say that according to the daily activity report, the daily activity could be checked in the bank. It is correct to say that as per daily activity report any fraudulent entry could be checked whenever it is committed. At least [one] officer of the bank used to sign daily activity report. It is correct to say that in daily activity report every voucher is to be tallied. Similarly, it appears that Samo told the investigators that reconciling entries at the end of the day was a job assigned to him and that it was correct that "at closing time of branch I have not made all such aforesaid entries. It is correct to say that if any entry is made in late hours, the same may be taken up on the early time on the following day." Choith Ram, the Branch Manager also testified that "It is correct to say that the daily activity report is checked on the following morning at 9:00 a.m." It is correct to say that if any fraud is committed in branch it may be detected on examination of daily activity report on the very same night or on the following morning. In the present case, the money was transferred on the 9th and withdrawn on the 12th. The 10th and the 11th were Saturday and Sunday, yet Saturday was apparently a working day for the Bank. In a nutshell, it appears that no one in the bank noticed that fraudulent entries had been made in the Bank system till well after the end of December. The auditors of the Bank also failed to identify the wrong doing. We are also surprised that the Bank had in place such a lax system where any employee of the Bank could transfer money to and from accounts without an instrument backing up the same. In essence, Rs. 1.2 million was transferred from the Bank's Advance Rent account (which was already running in negative) and where for the last several months only an amount of Rs. 70,000 was being debited as rent. Surely, a transaction of Rs. 1.2 million in the beginning of a month in an account that already was in the negative should have raised some red flags. End of day cash was not tallied nor were any reconciliations made.

7. A proper in-house inquiry was not held by the Bank to determine the veracity of the allegations. Soomro, the Area Manager of the Bank, in his examination in chief referred to the "inquiry" held by him but his cross-examination admitted that "No one had authorized me to conduct the enquiry nor I had conducted enquiry in the present scam." Even though the identity and password of Mohammad Umer was used to supervise the unauthorized transaction, Soomro in his cross-examination stated about Umer that "it is correct to say that as per my opinion the accused is innocent." He went to add "It is correct to say that there is no involvement of the accused Aneel Kumar in the present case so also Gul Meer." He did not give his reasons to reach the belief of innocence of the co-accused.

8. The mysterious Allah Bux, who was the recipient of the Rs. 1.2 million in the first tranche of the transaction was not examined as a witness in the case. Neither was a statement of his recorded by the police. We are also not satisfied with the entries shown in the account of Allah Bux which were produced at trial by Samo. We were not explained as to how a debit and credit entry can be made in the same transaction. The purported instrument (or an electronic record of the same) used to first debit and then credit Allah Bux's account was also not produced at trial. Whether Allah Bux was actually a real person or not remained unanswered at trial because no evidence was produced to show that he did indeed even operate a Bank account. Nafees Ahmed, the second investigating officer of the case, testified at trial that "I had not investigated from Allah Bux in whose name the account was used". He also admitted that Allah Bux had been cited by him as a witness in the case in the challan he had submitted. Neither was Allah Bux examined at trial nor was any reason for him not being examined. The investigating officer of the case further. testifying that he had no idea upon what basis was the enquiry initiated in the present case by the FIA. To us it appears that Allah Bux's account was being used as part of a larger scam going on in the Bank.

9. Another piece of "evidence" which the prosecution relied upon to implicate Jagirani and Kumar were their purported telephone conversations with the absconding accused Ghulam Ali Bohar. Choith Ram, the manager of the concerned Branch, who alleged at trial that there were telephone conversations between the two accused and the absconding accused, admitted that in his statement under section 161, Cr.P.C. he had not mentioned the same to the investigating officer of the case. Regrettably, the record of the telephone conversation was not produced at trial to establish the veracity of the Bank official's claim. S.I. Nafees Ahmed, the second investigating officer of the case, admitted at trial that "I had not confirmed the bank authorities that where from they obtained call data record of accused Sajjad. I had not gone to the concerned cellular company myself to obtain CDR of cell number of the accused Sajjad. I had not confirmed from cellular company regarding ownership of cell number against which CDR was obtained by previous I.O. from bank authorities".

10. Gul Mir and Mohammad Umer Khoso, the two individuals whose identities were used, were not only declared innocent by the Bank officials (as mentioned above) but were also allowed to continue in their jobs till the judgment was announced by the learned trial court, nearly four years after the incident. In fact one of them was also promoted by the Bank. The first investigating officer of the case S.I. Ghazanfar Ali Kazmi died before his testimony was recorded.

11. There is no doubt that the Bank has been the victim of a fraud carried out by its own employees. However, loop sides and incompetent investigation and weak prosecution has made the prosecution case suffer. The two individuals, Khoso and Gul Mir, who were careless or complicit, in the crime, were not only allowed to continue their employments with the Bank but were also given promotions and exonerated of any involvement in the crime by the prosecution witnesses. Important evidence in the shape of CCTV footage, Call Data Records, non-availability of official records of the identities used in the fraud, non availability of records to show the time when the transactions were effected; Allah Bux being mysterious dropped as a witness; inability to explain as to how the transactions could be effected with such case via the Bank system; lax Bank controls; negligence of the Bank staff to not conduct their day end duties according to well established rules of the banking system; an employee being allowed to handle sensitive computer systems completely unmonitored and unsupervised after banking hours - create doubt in the prosecution case, the benefit of which should have gone to the accused.

12. In view of the above and with a heavy hurt we are left with no option but to hold that the prosecution was unable to prove its case beyond reasonable doubt and allow the appeals. Consequently, the appellants are acquitted of the charge and should be released forthwith if not required in any other custody case.

SA/M-12/Sindh Appeals allowed.