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Petitioner: MUHAMMAD YASIN VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ajmal Mian, Allah Dino G. Memon Title: MUHAMMAD YASIN vs THE STATE Case No.: Criminal Appeal No,180 of 1987 Date of Judgment:1988-02-25 Reported As: 1989 P Cr. L J 131 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ALLAHDINO G. MEMON, J.-- The appellant was charged under section 420, P.P.C. And tried before the learned Presiding Officer Special Court (Offences in Banks) Karachi, who has convicted and sentenced him to suffer R.I. For four years, and also to pay fine of Rs,6 lacs, in default of payment to suffer further R.I. For 18 months. ' The brief facts of the prosecution case are that Mr. Ghulam Muhammad the then Manager, United Bank Limited, Mohmmad Shah Street Branch, Karachi, sent a complaint to the Deputy Director, Federal Investigation Agency, Qamar House, Karachi in which allegations regarding defalcations were made against Nayyar Hassan Siddiqui Manager of U.B.L. Muhammad Shah Street Branch and certain Firms including present appellant. The allegations against the appellant are as under:- (1) Mr. Nayyar Hassan Siddiqui hereinafter referred to as the 'said accused was posted as Manager at United Bank Ltd. Muhammad Shah Street Branch, Karachi since May, 1979. During the period of his posting Mr. Nayyar Hassan Siddiqui along with others indulged in numerous acts of criminal breach of trust and criminal misappropriation of Bank's funds lying in the Margin on Letters of Credit Account of Customers and falsification of the accounts of the bank etc. (2) That at United Bank Ltd. Muhammad Shah Street Branch, Karachi, substantial business was being transacted through establishment of letters of credit of the customers of the bank for the import of Leaves, Betel Nuts, Chemicals, Medicines and other articles. However, as United Bank Ltd. Muhammad Shah Street Branch, Karachi, was not authorized to establish letters of credit, such business was being transacted by it through I.I. Chundrigar Road, Nicol Road, .Al-Rehman and City Branches of the United Bank Ltd., Karachi.
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(3)The accused in collusion with Yaseen Lakhpati representing Messrs Aziz Impex as their attorney opened letter of credit No,332 dad 540-1981 for Rs,2,75,000 for the import of betel nuts, through United Bank Ltd. Al-Rehman Building Branch, Karachi without realizing 35% margin as approved. However, much later a sum of Rs,17,000 was realised towards margin. The accused after collecting the- import documents delivered original Bill of Lading without realizing its value of Rs,2,93,250 and replaced the same with a forged and fake Bill of Lading. The accused persons while in collusion with each other have thus caused wrongful loss to the bank and wrongful gain to themselves to the extent of Rs,2,76,250. (4) That in the light of facts and circumstances stated above the accused persons in collusion with each other have by their criminal actions and criminal breach of trust, criminal misappropriation of funds of the bank and of the customers, falsification of the bank account and record, fraudulent transactions and fraudulent misrepresentations and forgeries etc. Have caused a further loss of Rs,30,78,242.42 to the bank and further wrongful gain for themselves for which they are liable to be punished in accordance with law. ' This complaint makes a mention of an earlier report dated 8-7-1972 filed against the said Nayyar Hassan Siddiqui the then Manager and also the defalcation with regard to the L.C. Opened on behalf of Aziz Impex committed by Nayyar Hassan in collusion with accused Yaseen. The case was registered on 9-31983. Accused Nayyar Hassan was arrested on 4-4-1983 by F.I.A. Inspector Habib All but he was released on bail by the Special Judge Anti-Corruption on 12-41983, and since then he was absconding. ' After necessary investigation the challan was submitted against the present appellant on 27-2- 1985. ' The following charge was framed against the appellant to which he pleaded not guilty:- "That in collusion with absconding accused Nayyar Hassan Siddiqui, the then Manager of U.B.L. Muhamad Shah Street Branch, you on or about 4-10-1981, acting as Attorney on behalf of Messrs Aziz Impex, got opened L.C. No, 1234/1FL/78/81/MSS/332, for an amount of Rs,2,73,736 at the above said branch of U.B.L. Against import Licence NoA-916510, for value of Rs,2,75,000 for import of betel nuts, without payment of the required margin amount of 35% and that subsequently when the consignment of betel nuts arrived at the Karachi Port, you by practicing deception on the bank, dishonestly and fraudulently obtained from your said accomplice, absconding accused Nayyar Siddiqui, the bill of lading in respect of the said consignment, valued at Rs,2,92,250 and obtained delivery and clearance of the said consignment from the customs and K.P.T. Without retiring the L.C. Documents with the U.B.L. Or payment of the said value of goods, amounting to Rs,2,92,250". ' At the trial prosecution examined complainant Ghulam Muhammad P.W.1, he has produced the different documents Exh.2/A-1 to 2/L-1, complaint sent to the Director F.IA. Exh.2/M, Current Account Slips Exhs.2/N-1 and 2/N2, Raeesul Hassan Rizvi the then Officer In charge of L.C. Branch in the AlRehman Branch of U.B.L. P.W.2, S. Aleemuddin Traffic Supervisor K.P.T. P.W.3, he has produced delivery and sub-delivery orders as Exs.4/A-1 and 4/A-2, Khalid Naseem Manager General Shipping Agency Limited P.W.4, he has produced original bill of lading K-14 ad Exh.5/A, he also produced a letter sent to F.IA. As Exh.5-B, Sakhi Dad, Mashir P.W.5, he has produced the file which is said to have been recovered from a flat of the appellant as Exh.6-A, and Mashirnama as Exh.6/B. Syed Ali Akram Hashmi the then Second Officer Muhammad Shah Street Branch of U.B.L. P.W.6, Hassan Mian Muqaddam Director Operation General Shipping Co. P.W.7, Ashraf Ali Partner of Sympex Agency P.W.8, he has produced Import Licence as Exh.6/A-1, Insurance Cover Exh.6/2, Certificate of Origin Exh.6/A-3, he has also produced 3 bills of entry as Exh.6/B-1 to Exh.6/B-3, Syed Habib Ali, he had carried on the part of the investigation. He has produced two Mashirnamas regarding seizure of documents produced by Raeesul Hassan as Exh.10/B-1 and Exh.10/B-2. He has also produced a
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voucher secured from Muhammad Shah Street Branch U.B.L. And the Mashirnama of the same as Exh.10/C-1 and Exh.10/C-2,. ' After close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. In which he has stated that he had opened Account No, 2698 with the Muhammad Shah Street Branch and had submitted an application for opening of LC for import of Betel Nuts. The goods imported by him had arrived, and he had taken delivery of the same through his Clearing Agent. When the L.C. Was opened, he had deposited 35% margin as required by the rules of the Bank. The LC margin was about Rs,97,000 which amount he had deposited with the Manager of Muhammad Shah Street Branch under the counterfoil pay-in-slip Exh.2/N-1. He had also subsequently paid another amount of Rs,17,000 under the pay-in-slip Exh.2/M. He had also deposited a further amount of Rs,1,79,000 under the counterfoil pay-in-slip Exh.2/N-2. The two letters Exhs.2/K and 2/K-1 were written and signed by him. The shipping documents had been given to him by the Muhammad Shah Street Branch after he had deposited the amount of L.C. Etc. It was on these shipping documents that he had taken delivery of the consignment. Among the documents which he had received from the Muhammad Shah Street Branch was the original bill of lading which he had given to his clearing agent Simpex Agency Ltd. So far as the bill of lading Exh.2/1-1 was concerned, he had no knowledge about it nor he could know as to how it had come in the file of Muhammad Shah Street Branch. He has further stated that he had not practiced any fraud or deception upon the Bank. No doubt the letter Exh.2/K bears his signature but at the time he gave it, it was blank. He had given blank signed paper. Alongwith this letter he had given property documents of his house to the Manager. ' One Noor Muhammad Cashier of Muhammad Shah Street Branch was also examined as Court witness. ' So far as the question of opening of account by accused in the name of Aziz Impex being Account No, 2698 was concerned, the same has not been denied by the appellant. He has admitted the opening of L.C. For import of betel nuts from Singapore to the extent of Rs,2,73,736 and that on the basis of his application L.C. Exh.2/D was issued by bank for the above amount, and the said L.C. Was modified through modification of L.C. Exh.2/F. The accused has further admitted that when the goods arrived he had taken delivery of the same through his clearing agent. However, he has denied that he practised any fraud or deception upon the Bank. Therefore the only question which requires consideration is whether the accused/appellant had deposited the margin amount of Rs,87,500 at the rate of 35% and whether he had taken delivery of shipping documents after arrival of the goods after making full payment of the L.C. Amount and other charges of the bank. ' Complainant Ghulam Muhammad P.W.1 has deposed that he was Manager of Muhammad Shah Street Branch of U.B.L. From 22nd May, 1982 to 25th January, 1984. According to him an application for opening L.C. Was made by Aziz Impex holder of Account No, 2698 for an amount of US $ 27,520 for import of betel nuts. The application bears the signature of the accused as a person making the application, and the same was verified and processed by absconding accused Nayyar Siddiqui. He has produced the application as Exh.2/D-1. He has produced the entry relating to the registration of receipt of the above-mentioned L.C. Application, as Exh.2/B which is dated 13-10-1981. No margin amount has been shown on this application, and only commission amount of Rs,960, postage of Rs,10 and cable charges of Rs,200 are shown. The application was recommended by accused Nayyar Siddiqui at the margin of 35% which was approved by the Head Office. He has produced the recommendation made by Nayyar Siddiqui and the approval of the Head Office for opening of L.C. For an amount of Rs,2,75,000 at 35% margin as Exh.2/C. Accused Muhammad Yasin had submitted a letter of undertaking which he has produced as Exh.2/B-1-A. The letter bears the signature of accused Yasin and has been verified by accused Nayyar Siddiqui as their branch was not authorized to issue or open an L.C. The documents received at their branch were sent to AI-Rahmar
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Branch for opening of L.C. Under their letter dated 3-10-1981, after being processed, the same have produced as Exh.2/C-1. The said letter bears the signature of accused Nayyar Siddiqui. It shows that cash margin at 35% wa retained. However, the record of the branch does not show that margin was recovered from the accused for the opening of the L.C. The Al-Rehman Brand of the U.B.L. On the request of their branch, contained letter Exh.2/C-1, opener an L.C. For US $ 27,520 on 4th October, 1981. A carbon copy of the L.C. Has beer produced as Exh.2/D. On 14-12-1981, a letter signed by acucsed Muhammad Yasin on behalf of Aziz Impex, was sent to amend the L.C. And the same ha been produced as Exh.2/E-1. The said letter was forwarded by their branch tO Al-Rehman Branch on 15h December, 1981 for necessary amendment in L.0 The letter has been produced as E.2/E-2. This letter has been signed b accused Nayyar Siddiqui. The Al-Rahman Branch of U.B.L. Thereupon opened a amended L.C. Carbon copy of which has been produced as Exh.2/F. Subsequent when the shipping documents in respect of the goods imported were received by the Al-Rahman branch of U.B.L. Their branch sent them an I.B.CA., dated 16-21982, for an amount of Rs,2,92,250. The I.B.CA. Bears signatures of accused Nayyar Siddiqui and another Officer of the branch namely Mr. Ali Akram Hashmi. The I.B.CA. Has been produced as Exh.2/G. The Al-Rahman Branch sent them the shipping documents for delivery to the importer after recovering from him the L.C. Amount and the bank's charges. The receipt of the shipping documents has been shown in the P.A.D. Register. He has produced the entry in question from the PA.D. Register as Exh.2/H. This entry is dated 16-2-1982. This register is maintained at their branch in the PA.D. Register. Amongst the documents received specific mention was made of bill of lading. When he took over charge at Muhammad Shah Street Branch on 22nd May, 1982, he found a file relating to this matter in the branch. He has produced the file which has been given as Exh.2/1. He made efforts to have the documents retired. He sent for accused Yasin at the bank and asked him to retire the documents. He stated that he had shortage of funds and would retire the documents in a short time. However, the accused failed to retire the documents. In August 1982 an audit inspection team advised that if the party was not retiring the documents, the bank can do so. Thereupon, he (witness) alongwith auditor Mr. Nawazish Ali contacted the agents of the General Shipping Company. The Shipping agents showed him an original bill of lading, and informed him that on the basis of this bill the consignments have been delivered to the importer on 17-2-1982. The photo copy of that original bill of lading has been produced as Exh.2/J. When he showed them the bill of lading which was available in their file, he was informed by the agents that this bill of lading did not pertain to the ship concerned which was of L.S Lines, and not of Sun Union Shipping Co. According to the agents bill of lading available in the file of the bank was fake, this bill has been produced as Exh.2/1-1. Previous to that he had sent for accused Yasin who had admitted in writing that a total amount of Rs,18,79,870 was outstanding against him on different accounts named in his letter, and that he is responsible for the same. This letter has been produced as Exh.2/K. This letter bears signature of accused Yasin. In support of this letter the accused had deposited title deeds of some properties which are in possession of the bank. He has produced the letter of accused Yasin dated 24-6-1982 depositing title deed by accused as Exh.2/K-1 (The original of the letter, dated 19-6-1982, was seen by the Court as Exh.2/E produced in Case No, 274/84 and the Photostat copy thereof was kept on record as Exh.2/K). Out of the said claim against the accused an amount of Rs,17,000 has been deposited by accused under a pay-in-slip dated 16-11-1981 which has been produced as Exh.2/L. This amount of Rs,17,000 was towards margin of 35%. He has produced the complaint as Exh. 2-2/M. In cross-examination he has deposed that according to Exh. 2/C-1 the amount of 35% margin has been retained by Muhammad Shah Street Branch. He was shown two counterfoils of deposit slips dated 1-10-1981 and 13-2-1982 for amounts of Rs,97,000 and Rs,1,79,000 respectively, and according to him both of them bear the signatures of absconding accused Nayyar Siddiqui, and the stamp of the bank 'RECEIVED CASH'. The counterfoils have been produced as Exhs.2/N-1 and 2/N-2.These
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deposits have been made for Account No,2698. Raesul Hasan Rizvi P.W.2 has deposed that in the year 1981 he was posted as Officer In charge of L.C. Branch in the Al-Rahman Branch of U.B.L. The documents bearing Exhs.2/B-1, 2/B-1-A, 2/C, 2/E-1 and 2/E-2 were sent to them by the Muhammad Shah Street Branch for opening of L.C. As they were not authorised to open L.C. They had opened the L.C. Of which Exh.2/D is the carbon copy. This L.C. Bears his signature. They had sent original copy of L.C. To their foreign correspondent in Singapore for making payment of the price of the betel nuts imported to the exporter on the goods being exported and the shipping documents being delivered to him. Subsequently they had received the shipping documents from their Singapore correspondent. These documents consisted of the original bill of lading, invoice, package lists and bill of exchange, he has produced such entry from their PA.D. Register as Exh.3-A. They had sent these documents to Muhammad Shah Street Branch for delivery to importer. After recovering the amount of the L.C. The documents including the original bill of lading Exh.2/J was the photostat copy of original bill of lading which they had sent to Muhammad Shah Street Branch. A carbon copy of a bill of lading from the file Exh.6/A is non-negotiable copy of the bill of lading of which Exh.2/K is a photostat copy. He has produced the non-negotiable copy of bill of lading as Exh.6/A-1. The bill of lading Exh.2/A-1, shown from file Exh.2/A of Muhammad Shah Street Branch, was neither the bill of lading which was received by them nor they had sent this to Muhammad Shah Street Branch. In cross-examination he has deposed that the shipping documents are sent to the originated branch which are required to be kept under lock and key in safe custody, and under dual custody. ' Mr. M.S. Alimuddin P.W.3 has deposed that he is Traffic Supervisor in K.P.T. He is posted at the Central Ware House. The- delivery order and sub-delivery order of the K.P.T. Have been produced by him as Exhs.4/A-1 and 4/A2. According to him the consignment covered by these two delivery orders had come on the vessel Cherry Orient and consisted of double jute bags betel nuts imported from Singapore, the consignees being Aziz Impex and U.B.L. Delivery of this consignment was made at Shed No,16 of K.P.T. And after the delivery, the documents were sent to them at Central Ware House for record. The clearing agents through whom the delivery was taken were Simpex Clearing. Agents. ' Mashir Sakhi Dad P.W.5 has deposed that he was made Mashir of arrest of accused Muhammad Yasin. He has produced the Mashirnama of arrest as Exh.6-B. A file was recovered by the F.IA. Inspector from the flat from which the accused was arrested, he has produced the file as Exh.6-A. ' S. Ali Akram Hashmi P.W.6 has deposed that in the year 1981 he was posted as IInd Officer at Muhammad Shah Street Branch of U.B.L. Absconding accused Nayyar Hassan Siddiqui was the Manager. The L.C. Applications were received and were being processed by accused Nayyar Hassan. L.C. Application Exh.2/B-1 was processed by accused Nayyar Hassan who has signed on the application over the "Bank Stamp". In the column for rate of margin 35% has been shown and against the words 'sanctioned by' there is signature of accused Nayyar Hassan. The figures against the rate of margin are also in the hand of accused Nayyar Hassan with which he was familiar. The Manager of the branch was not authorised to sanction the margin. The margin can only be santioned by Zonal Office. Undertaking Exh.2/B-1/A has been verified by accused Nayyar Hassan Siddiqui, and it bears his signature. Proposal for approval of L.C. Exh.2 and the sanction of the margin has been signed by accused Nayyar Hassan Siddiqui. The proposal bears his signature. The proposal also purports to bear his signature (witness) as Officer of the Bank, but actually it does not bear his signature. It is a forged signature. The sanctioning authority had approved margin of 35% on the reverse of the proposal and the sanction order. There are details of outstanding liabilities against the person who had applied for L.C. These details bear signature of accused Nayyar Siddiqui: There is also another signature by the side of the signature of accused Nayyar Siddiqui which purports to be his (witness) signature but it is actually not his signature, and is
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forged one. Letter Exh.2/C-1 addressed by Muhammad Shah Street Branch to the Al-Rahman Branch for opening of L.C. Bears signature of Nayyar Hassan Siddiqui. There is also another signature on the letter which purports to be his signature, but according to the witness it was not his signature and it was a forged signature. Application Exh.2/E-1 which is for amendment of L.C. Bears signature of accused Nayyar Hassan Siddiqui in token of having verified the signature of the person applying for amendment of L.C. The photostat copy of the original bill of lading Exh. 2/J bears signature of accused Nayyar Hassan Siddiqui, but his (witness) signature thereupon has been forged. The bill of lading Exh.2/1-1 is a false forged bill of lading. According to him it was non- genuine bill of lading as all genuine bills of lading bear the stamp of the Foreign Bank forwarding the documents to the Pakistani Bank. In cross-examination he has deposed that he has never dealt with Foreign Exchange. There is no endorsement on the application Exh.2/B-1 specifically stating that the margin of 35% has been recovered. The shipping documents are valuable documents and are kept under lock and key in the charge of the Manager. He was informed by the new Manager P.W. Ghulam Muhammad that he had found the bill of lading Exh.2/1-1 in the file with the other documents pertaining to this case. ' Hassan Mian Makhdoom P.W. 7 has deposed that he is Director of Operation in the General Shipping Company. They had received the original bill of lading of which photostat copy has been produced as Exh.2/J alongwith other shipping documents. The said original bill of lading and other shipping documents were brought to them by clearing and forwarding agent of the consignee, Aziz Impex. On the basis of original bill of lading and shipping documents their Office issued delivery order. The delivery order Exh.4/A-1 was the delivery order which they had issued to Simpex Agency. The delivery order bears his signature. It was thereafter the responsibility of the clearing and forwarding agent to give delivery to the consignee. In cross-examination he has deposed that they did not find any discrepancy in the documents which they received from the clearing and forwarding agents. He cannot say whether the documents were taken from the bank authorisedly or they were stolen or they were taken unauthorisedly. He had found the documents in order. After they issued delivery order, they consigned the original bill of lading to their record room. When the F.I.A came to their office and enquired about the original bill of lading, they could not find the same. However, there was a photostat copy of bill of lading, and they had delivered the same to the F.IA. ' Ashraf Ali P.W.8 has deposed that he is partner of Sympex Agency which are clearing agents and that he knows the accused. Since 1978 they had been clearing goods on behalf of the accused. In February, 1982 accused Muhammad Yaseen delivered to him shipping documents in respect of consignment which was to be brought by the ship "Cherry Orient". The consignee of the goods was Aziz Impex and the consignment consisted of betel nuts. The shipping documents which were given to him by accused Muhammad Yaseen were Import Licence, copy of L.0 Invoice, Bill of Lading and Certificate of Origin. He was shown the above documents and he has produced an Import Licence as Exh.6/A-1, the Insurance covers Exh.6/A-2 and Certificate of Origin Exh.6/A-3. The L.C. And its annexures have been produced as Exhs.2/E and 2/F, the bill of lading has been produced as Exh.2/J. According to him he was given the original copy of bill of lading of which Exh.2/J is a Photostat copy. He had delivered the original bill of lading to General Shipping and obtained from them delivery order General Shipping are the agents of Cherry Orient. He delivered the delivery order to the K.P.T. Who gave him delivery of the goods in pieces, which were given by him to Aziz Impex. Accused Muhammad Yaseen is the proprietor of Aziz Impex. It was accused Muhammad Yaseen who had paid them commission as also the custom duties and other charges on the consignment. The three bills of entry Exhs.6/B-1 to 6/B-3 were the bills which he had filed for the consignment of which delivery was given to accused Muhammad Yaseen. He 'had filed 4 bills of entry but the 4th bill is not in the file. In cross-examination he has deposed that when he received
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the shipping documents from the accused they were complete in all respects, in order and discharged by the bank. The accused had filed no bond. ' Syed Habib Al P.W.9 has deposed that he was entrusted with the investigation of this case on 4-4- 1983. On the same day he had arrested absconding accused Nayyar Hassan Siddiqui. He had recorded the statement of witnesses Ghulam Muhammad, S. Ali Akram Hashmi, Ashraf Ali, Khalid Nasim, Hassan Mian Makhdoom, Anthony, Raeesul Hassan and Syed Alimuddin. He had secured documents which were produced by P.W. Raeesul Hassan and from the K.P.T. Under Mashirnamas which he has produced as Exh.10/B-1 and Exh.10/B-2. He had also seized a voucher and certain other documents from Muhammad Shah Street Branch of U.B.L. Under Mashirnama and he has produced the voucher as Exh.10/C-1 and Mashirnama as…
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