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Petitioner: STATE VS Respondent: MUHAMMAD HAROON AND 2 OTHERS
1988 P Cr
1988 P Cr. L J 781
[Special Court (Offences in Banks) Karachi]
Before Z.A. Channa, Presiding Officer
STATE--Prosecutor
Versus
MUHAMMAD HAROON and 2 others--Accused
Case No.9/A of 1985, decided on 18th July, 1987.
(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)--
---S. 6--Penal Code (XLV of 1860), Ss. 420 & 477-A--Cheating- Falsification of accounts--Accused opening different accounts in different banks--Cheques of large amounts drawn on account from a bank where meagre amount maintained--Such cheques deposited in other Banks for collection and credit to their accounts in those Banks--Cheques sent to Bank "U" having meagre amount not posted in relevant account but destroyed--Amounts received on strength of such cheques in their accounts, withdrawn by accused--Accused 'H' working as Machine Operator in Bank 'U' making oral and written confession in presence of witnesses and subsequently making detailed judicial confession--Accused depositing 11 cheques in his account with another Bank "H" through eleven deposit slips--Ten of those cheques drawn on his own account in Bank" U" while eleventh drawn on joint account of all accused in same branch--Accused 'H' admitting deposit of cheques, credit of such amounts to his account and withdrawing those amounts through 55 cheques--Accused also admitting making of judicial and extra-judicial confessions but alleging to be made under coercion--Accused, Machine Operator opening five accounts--Accused manipulating supplementary sheets of Bank" U'1-Accused not explaining as to how and under what circumstances, he was managing five accounts--No explanation forthcoming for transacting huge amounts in his accounts--Cheques deposited by accused, used from cheque books issued to him on requisition slips signed by him--Funds in account on which cheques drawn, were wholly insufficient for encashing cheques and such fact within knowledge of accused--All cheques drawn on branch where accused 'H' working as Machine Operator responsible for making machine entries in ledger accounts--Cheques normally coming into his possession, not available--Supplementary sheets prepared by accused--Witnesses familiar with handwriting of accused identifying his initials on supplementaries--Evidence not challenged in cross-examination of witnesses--Supplementary sheets pertaining to same dates when cheques received for collection--Amounts shown in excess corresponding to amounts of cheques--Confessions found voluntary and true, corroborated by independent evidence--Accused "H", held had dishonestly and fraudulently managed to withdraw huge sums of-money from Bank "U" and falsified supplementary sheets of that branch and thus committed offences punishable under Ss. 420 & 477-A, P.P.C.
(b) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)--
---S. 6--Penal Code (XLV of 1860), Ss. 420 & 477-A/34--Common intention--Two accused employed as salesmen by co-accused 'H' at his medical store admitting having opened joint account on his asking in Bank--Accused neither depositing cheques for collection nor issuing any cheque for withdrawal of amount so received--No evidence showing receipt of money by two accused out of money withdrawn by accused 'H'--No direct evidence of meeting of minds or participation in criminal acts of accused 'H'--accused burdened only with opening of joint account and issuance of one cheque drawn on that account- Confessional statement of co-accused not mentioning any conspiracy with accused--Accused not using or operating said account--Cheque drawn on joint account not proved to be written or drawn by accused- Cheque not even produced--Opening of joint account by two accused with accused 'H', held, would not by itself indicate any common intention or entering into conspiracy with him to defraud Bank- Accused could not be saddled with liability for illegal or criminal acts of their co-accused unless either common intention or conspiracy with him was established--No common intention or criminal participation on part of two accused to defraud bank was established--Accused acquitted in circumstances.
Zulfiqar Ali Bh- v. State P L D 1979 S C 53 and Maqbool Hussain v. State P L D 1960 S C 382 ref.
(c) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)--
---S. 6--Penal Code (XLV of 1860), Ss. 420 & 477-A--Extra-judicial confession--Retracted--.appreciation of--Confession before two officers of bank written by accused himself--Witnesses testifying confession made voluntarily in their presence--Confession made after detection of fraud by Manager of Bank--No question to witnesses as to nature of threats or promises or person from whom threats emanating--No evidence led by accused on the point--Not a single question to any witness regarding presence of police in Bank at time of making confession--Accused giving full details of fraud and mode of commission--Confession corroborated on every material point by trustworthy and tangible evidence--Depositing of cheques by accused, amounts credited to his account but not debited to account on which cheques drawn, manipulation of supplementary sheets showing excess amounts exactly same as those of cheques and withdrawal of said amounts through 55 cheques by accused--Extra-judicial confession, held, was voluntary and true, corroborated by independent evidence.--[Confession].
(d) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)--
---S. 6--Criminal Procedure Code (V of 1898), S.164--Penal Code (XLV of 1860), Ss. 420 & 477-A--Judicial confession, recording of--Whether voluntary--Magistrate before recording confession, confirming from accused that he was not maltreated and informing him that he was not bound to make confession--Sufficient time for reflection given to accused--No marks of violence found on his person--Magistrate satisfying himself about voluntary making of confession--Required certificate appended to statement--Accused sent to judicial lock-up after recording his statement as assured to him earlier--Magistrate taking all possible precaution to ensure voluntary making of confession-Confession giving strong current of exultation and sense of achievement without any feeling of remorse or regret--Confession corroborated in material particulars by independent pieces of evidence--No evidence to indicate presence of police at time of recording statement as alleged by accused--No such question put to any witness--Confessional statement neither indicating presence of police nor any threat or promise to accused 1w making statement-Confession, held, was voluntarily made by accused after taking all reasonable precautions for ensuring its voluntaries and was corroborated by independent pieces of evidence.--[Confession].
Bhimappa v. Emperor A I R 1945 Bom 484; Sarwan Singh v. State of Punjab A I R 1957 SC 637; Rahzan and another v. State PLD 1960 (W.P.) Lah. 24; Hakim Gul v. The State P L D 1964 (W.P.) Pesh (?); 1985 M L D 604; Gul Jamal v. The State 1980 S C M R 654; Sarwan Sing v. State P L D 1957 S C (Ind.) 555 and Syed Sharifudding Pirzada v. Sohbat Khan P L D 1972 S- C 363 ref.
JUDGMENT
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.
No. and name of the Account
Bank/Branch where opened
Date of opening Account
Names of person Opening Account
(1)No.2218 National Medical Store
Stock Exchange Branch of U . B . L .
22-11-80-
(i) Mohd. Munaf (ii) Abdul Kader.
(2) No. 2448 M/s. Rehmani Commission Shop.
-do-
7-4-1982
(i) Abdul Majid (ii) Mohd. Amin (iii) Mohammad Haroon.
(3) No.2261 M/s. Yousuf & Nasir Co.
-do-
2-4-1981
(i) Mohd. Amin (ii) Abdul Majid.
(4) No. 123-G Mohd. Haroon
-do-
22-4-1972
Mohd. Haroon.
(5) No. 12922-1 Mohd. Haroon Rehmani
Habib Bank Keamari Br.
12-2-1980
Mohd. Haroon Rehmani.
(6) No. 797 National Medical Store
Habib Bank Nayabad Br.
23-9-1981
Abdul Majid.
(7) No. 564 Yousuf Nasser and Co.
M.C.B. Soldier Bazar Branch
15-4-1981
(i) Mohd. Amin (ii) Abdul Majid.
(8) No. 1118 Yousuf Medical and General Store
U.B.L. Federal 'B' Area, Karim- abad Branch.
26-10-1982
(i) Mohd. Haroon (ii) Abdul Qudus
(9) No. 187 Rehmani Commission Shop.
Muslim Commercial Bank AI-Karam Square
20-10-1981
(i) Haroon (ii) Abdul Majid.
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.
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: ---
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.
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.
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.
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.
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.
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 ?
My findings on the above points and the reasons therefore are as follows: -
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.
"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."
In Maqbool Hussain v. State P L D 1960 S C 382, the Supreme Court observed: -
"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."
In H. B. Gill and another v. The King A I R 1948 P C 128, the Judicial Committee of the Privy Council cautioned:
"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."
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.
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.
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.
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.
As will appear from the statement at p.2 of this judgment, accused Haroon…
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