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Petitioner: MUHAMMAD HAROON REHMANI VS Respondent: STATE
1989 P Cr
1989 P Cr. L J 1025
[Karachi]
Before Sajjad Ali Shah and Qaiser Ahmed Hamidi, JJ
MUHAMMAD HAROON REHMANI‑‑Appellant
versus
THE STATE‑‑Respondent
Criminal Appeal No. 137 of 1987, heard on 30th November, 1988.
(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 420 & 477‑A‑‑Offences in Respect of Banks (Special courts) Ordinance (IX of 1984), Ss.6 & 10‑‑Cheating and falsification of accounts‑‑Accused a bank employee in connivance with others managed to draw huge amounts and caused huge loss to Bank and misappropriated amount by manipulation in totalling of daily sheets and by not debiting cheques received in clearance to accounts to which they related‑‑Accused after sending advice tore away cheques‑‑Accused confessed his guilt orally and in writing in presence of witnesses and before other senior officers‑‑Accused advanced loans to other persons and purchased household effects from amount so illegally gained‑‑Prosecution proved case against accused and produced overwhelming evidence which clearly connected accused with commission of crime alleged against him‑‑Accused in his judicial confession had given all relevant facts as to how he committed fraud and what he did with the money‑‑Plea of accused that his confession was not voluntary and was outcome of threat was nullified by statement of Magistrate recording confession‑‑Confession stood corroborated by recoveries made from persons to whom amounts were lent by accused‑‑Held prosecution proved its case against accused beyond doubt and judgment convicting accused was based upon proper appraisal of evidence with convincing reasons for conclusions arrived at‑ Conviction and sentence upheld in circumstances.
Bhimappa Saibanna Talwar and others v. Emperor A I R 1945 Bom. 484; Rahzan and another v. The State P L D 1960 (W.P.) Lab. 24; Hakim Gul v. The State P L D 1964 (W.P.) Pesh. 1; Tauqir Alam and 9 others v. State 1985 M L D 604; Banwarilal and others v. Union of India A I R 1963 SC 1620 and State v. Khan Muhammad 1986 P Cr. L J 2112 ref.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑S. 477‑A‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.6 & 10 & Sched‑‑Scheduled offence‑‑Section 477‑A, Penal Code, has been included specifically in Schedule to Ordinance IX of 1984, which related to falsification of accounts‑‑Such offence, attributed to an employee of bank has to be tried under special law by Special Court set up thereunder, which is a mandatory requirement and there is no other alternative.
Abdul Sattar Pingar for Appellant.
S.M.W. Hazratji for the State.
Date of hearing: 30th November, 1988.
JUDGMENT
SAJJAD ALI SHAH, J.‑‑ Appellant Muhammad Haroon Rehmani has filed this appeal against impugned judgment, dated 25‑7‑1987 of Special Court (Offences in Banks), Karachi, whereby appellant has been convicted and sentenced as follows:‑
(i) For offence under section 420; P.P.C., appellant is convicted and sentenced to R.I. for six years and a fine of Rs.15 lacs or in default R.I. for 18 months; .
(ii) For offence under section 477‑A, P.P.C., appellant is convicted and sentenced to R.I. for five years. It is directed that both sentences are to run concurrently, while sentence in default of payment of fine shall start running after expiry of substantive sentences of imprisonment.
By the same impugned judgment mentioned above, trial Court has convicted Abdul Qudus for offence under section 420 read with 34, P.P.C. and has sentenced him to R.I. for 2‑1/2 years and fine of Rs.2 lacs. In default of payment of fine, he would undergo R.I. for four months. Abdul Qudus has filed a separate appeal being Criminal Appeal No. 146 of 1987 challenging his conviction and sentence.
In the trial Court six persons were put on trial including Muhammad Haroon Rehmani and Abdul Qudus. Vide the same impugned judgment remaining four persons namely Muhammad Amin, Muhammad Munaf, Abdul Majid and Abdul Qadir have been acquitted for offences of cheating and falsification of accounts.
Prosecution case as depicted in F.I.R. and briefly stated is that appellant Muhammad Haroon Rehmani was working in the United Bank Limited, Stock Exchange Branch, Karachi as Machine Operator and was responsible for passing of cheques and other entries in the current deposit cards maintaining and balancing of ledger books and regular keeping of the records pertaining to current deposits account of the Branch. On 18‑2‑1985, Manager of the Branch on surprise checking found that balancing of the ledger was not made correctly and totalling made on balancing of ledger on 31‑1‑1985 was fictitious. Matter was reported to the higher‑ups and a Committee of four persons was formed to make a probe into the matter. Careful enquiry revealed that balancing and totalling of ledger was done fictitiously and record showed that various balances were reduced by way of tampering with figures and erasing entries. Balance Book and ledgers were being handled by appellant Muhammad Haroon, who on enquiry admitted orally and in writing his involvement in the misappropriation of huge funds by falsification of balance book since 1980.
Preliminary enquiry further revealed that appellant Muhammad Haroon was maintaining following accounts:
(i) CD Account No. 2218 at U.B.L., Stock Exchange Branch as Partnership Account under the name and style of Messrs National Medical Store with Munaf and Abdul. Qadir Sherwani as his partners;
(ii) Partnership Account No. 1118 at U.B.L., F.B. Area Branch with Abdul Qudus and himself as partners;
(iii) Partnership Account at M.C.B., Al‑Karam Branch, Federal `B' Area, Karachi under the name and style of Messrs Rehmani Commission Shop, with himself and Mr. Abdul Majeed as partners.
It was further revealed that Muhammad Haroon used to deposit cheques of Account No. 2218 of U.B.L. Stock Exchange Branch in Account No.1118 at U.B.L., F.B. Area Branch as well as the aforementioned account at M.C.B., Al- Karam Branch, Karachi which were in turn presented for payment to U.B.L., Stock Exchange Branch through transfer delivery and clearing. After the clearance Muhammad Haroon used to destroy the cheques instead of recording the entries in the ledgers of Stock Exchange Branch and in order to balance the current deposit ledger, he used to tamper with figures and totals in the balance book. It appeared that Muhammad Haroon in connivance with others had managed to draw huge amounts and caused huge loss to the Bank approximately to tae tune of Rs.97,00,000 as admitted by himself. Facts revealed that other accomplices of Muhammad Haroon in these illegal acts were Abdul Majeed and Abdul Qadir Sherwani, Munaf Qudus and others.
Complaint in writing containing facts stated above was filed with F.I.A. on 18‑2‑1985 by Mr. Arif Rasheed, Manager, U.B.L. Stock Exchange Branch, Karachi. In the result F.1.R. No.9/1985 was registered for offences under sections 409, 420, 468, 471 and 477‑A read with section 5(2) of the Act II of 1947 against all accused persons mentioned in the complaint and investigation was taken in hand.
Syed Shahid Hussain, Inspector, F.I.A. in the Banks Circle incorporated complaint in 154 register on 18th February, 1985 on the basis of written complaint from the Manager of the concerned Branch. On the same day he arrested Muhammad Haroon and Abdul Qadir and secured a small bag from Muhammad Haroon containing cash amount of Rs.3,312.70. On the following day he arrested Qudus, Munaf and Abdul Majeed. From the houses of Muhammad Haroon and Qudus, he secured household articles such as furniture, T.V. Fridge and Fans etc. It was found that both Muhammad Haroon and Oudus were brothers and lived in the same building.
On 20‑2‑1985 Mst. Rabia mother of Muhammad Haroon and Oudus was restrained in writing from transferring the house of Muhammad Haroon and Qudus, which stood in her name. Honda Scooter No. KAS‑8064 70‑CC and Toyota Car bearing registration No. 144‑364 were seized. On 26‑2‑1985 Haji Ahmed produced an amount of Rs.7,50,000 which was secured. On the same day Washing Machine, one Colour TV were secured from the house of Munaf. From the house of Abdul Majeed one Washing Machine and one Fridge were secured. On the same day Muhammad Ashraf voluntarily produced one Fridge, one Washing Machine and one Colour TV. On the same day one Muhammad Amin son of Majid produced one Colour TV which was secured. Food‑grains from Rehmani Commission Shop maintained by Muhammad Haroon and Majeed were seized. Muhammad Younus produced Honda Scooter No.KAM‑838 50‑CC. Muhammad Farooq produced Honda Motorcycle No.KAM‑2783. Muhammad Ashraf produced Motorcycle No.KAM‑2781. Muhammad Farooq son of Ghaffar Memon produced Honda Motorcycle No.2128. On the same day Muhammad Farooq produced motorcycle No.KAM‑9700 and another motorcycle No.KAA‑ 729. Food‑grains were secured from godown of Rehmani Commission Shop situated in House No. 480/3, Karimabad, Karachi. Mst. Rukhsana wife of Abdul Qudus produced Vespa Scooter NO.KAM‑4783. Yousuf Memon a relative of Muhammad Haroon produced an amount of Rs.1,00,000. Medicines and other articles were seized from Yousuf Medical and General Store which was being maintained by Muhammad Haroon and Qudus. The shop was sealed. On 4‑3 1985 property seized as stated above from the houses of Muhammad Haroon and Qudus was handed over to U.B.L. authorities for keeping them in safe custody. Rs.2,546 were secured from the drawer of table from the house of Muhammad Haroon. On 7‑3‑1985 Mehran Medical and General Store was searched and medicines and other merchandise were seized.
On 4‑3‑1985 Investigating Officer produced Muhammad Haroon before Mr. Nazar Muhammad, A.C.M., who recorded his judicial confession. Muhammad Haroon was sent to judicial custody after his confession was recorded. Various items of properties and cash were seized, during the entire investigation on the basis of judicial confession of Muhammad Haroon and statements of other accused persons and other witnesses. On 26‑3‑1985, 164, Cr.P.C. statement of P.W. Haji Ahmed was recorded before A.C.M. On 3‑4‑1985 record of CD Account No.797 was secured from H.B.L. Nayabad Branch. On the same day record of Account No.12922‑1 of H.B.L., Keamari Branch was secured. On 7‑4‑1985 record of U.B.L. Karimabad Branch pertaining to Account No.1118 was secured. On 9‑4‑1985 record of Account No.2261 maintained in U.B.L. Stock Exchange Branch was secured. On 10‑4‑1985 record of U.B.L., Stock Exchange Branch pertaining to T.T. and D.D. applications was secured. Several other amounts were secured from other persons which were produced by them voluntarily.
On 6th August, 1985 papers were sent to Director, F.I.A. Technical Islamabad for comparison of handwriting and signatures of appellant Muhammad Haroon alongwith routine writings and signatures of six other accused persons who were put on trial. On 21‑8‑1985 after completion of all the steps of investigation, final challan was submitted in the Court in the year 1983. On 3‑10 1985 final challans were submitted in respect of years 1980, 81, 82, 84 and 85.
On 10‑12‑1984 charge was framed in the trial Court and on 24‑5‑1987 amended charge was framed against all the six persons who were put on trial. According to the amended charge Abdul Majeed, Muhammad Amin and Muhammad Haroon opened a joint Account No.2448 in the name and style of Messrs Rehmani Commission Shop with Stock Exchange Branch of U.B.L. at Karachi, where Muhammad Haroon was working as Machine Operator. Muhammad Munaf and Abdul Qadir opened a joint account bearing No.2218 with Stock Exchange Branch of U.B.L., Karachi and Abdul Qudus and Muhammad Haroon opened Account No.1118 on 26‑10‑1982 with Karimabad Branch of U.B.L. in the name and style of Messrs Yousuf Medical and General Store. From 1st January, 1983 till 28th December, 1983, accused persons so charged and named above deposited 17 cheques of the value of Rs.17,00,000 drawn on Accounts Nos. 2448 and 2218 in the said Account No.1118 in furtherance of common plan. Muhammad Haroon further knew well that Accounts Nos. 2448 and 2218 had no balances to make payment in respect of those 17 cheques and he destroyed those cheques and forwarded false credit advices to the clearing house for onward transmission to Karimabad Branch of U.B.L. for crediting Rs.17,00,000 in Account No.1118 and upon receipt of proceeds of the said 17 cheques at Karimabad Branch he withdrew from the said Account No. 1118 the said amount of Rs.17,00,000 or thereabouts and committed criminal breach of trust in respect of the said amount and thus caused a loss of Rs.17,00,000 to U.B.L. Stock Exchange Branch. Further in order to conceal fraud Muhammad Haroon falsified daily supplementary sheets of the said Branch by wrongly totalling the amounts. Accused persons were charged for offences punishable under section 420, P.P.C. and Muhammad Haroon was further charged for offence under section 477‑A, P.P.C. and further all accused persons were charged for offences under section 420/477‑A, P.P.C. read with section 34/109, P.P.C.
In the trial Court prosecute examined 13 witnesses in support of its case. P.W.1 is Zaki Muhammad who was at the relevant time Vice‑President and Zonal Head of U.B.L. in Karachi and Stock Exchange Branch was under his supervision. He was deputed to make enquiry in respect of fraud committed in Stock Exchange Branch. He went there and was informed by Manager Arif Rasheed that appellant Muhammad Haroon had criminally misappropriated a sum of Rs.97,00,000 by manipulation in the totalling of daily sheets and by not debiting the cheques received in clearance to the accounts to which they related. Appellant Haroon confessed his guilt orally and in writing in presence of this witness as well as many other senior officers namely Badruddin, Shahzaman Khan and Wazarat Karim. Appellant also stated that from the amount so illegally gained, he had advanced loans to other persons and done some charity as well. This witness produced admission in writing of appellant Haroon Exh.2/C.
P.W.2 is Arif Rasheed, who was Manager at the relevant time in the said Branch. According to this witness appellant was Machine Operator and as such was Incharge of CD ledger maintenance, posting of cheques and balancing of these ledgers. According to this witness, he checked balance book of the Branch in respect of CD ledger and found that they did not tally as there was difference in the total amount. He reported the matter to the Circle Executive. In response three officers namely Messrs Zaki Ahmed Shahzaman Khan and Wazarat Karim were sent for the purpose of investigation. This witness further deposed that appellant Haroon came to him and confessed his guilt orally as well as in writing. Modus operandi was that appellant Haroon had opened certain accounts in various names in the said Branch and he issued cheques in respect of those accounts in favour of other accounts which he had opened in other Banks and Branches. After receipt of such cheques for collection in the Stock Exchange Branch, which he received as Machine Operator, he did not debit those cheques to his account in question but passed the credit entry in respect of said cheques and forwarded to the Bank from where the said cheques were received and he destroyed the cheques received from other Banks and branches. He fitted the same amount in the supplementary sheet in such a way, that the accounts of the day would tally. On credit of proceeds of such cheques in other Banks and other Branches in the accounts opened by him he withdrew the said proceeds. He continued such operation from 1980 to 1985. This witness further produced a large number of documents relating to the Bank, which are on the record as Exhs.3/A to 3/N.
P.W.3 is Abdul Razak, who deposed that property on Plot No.421/3. Karimabad/Federal `B' Area, Karachi stands in the name of his wife Mst. Rabid. Qudus and Sattar took one shop in the same building on rent in the name of Mst. Abida wife of Haroon in which Yousuf Medical Store was set up which was run by Qudus.
P.W.4 is Abdul Majeed, who worked as Manager in the Stock Exchange Branch from September, 1980 till August, 1983. Appellant Haroon worked in the same Branch as Machine Operator. This witness further deposed after seeing Exhs.3/D and 3/D‑1 that Accounts Nos. 2218 and 2448 were approved for opening by him as Manager. Fraud was detected in the same Branch after he was transferred. This witness further described functions and duties of Machine Operator.
P.W.5 is Syed Ahsan Hussain , who was working as, an officer in the Stock Exchange Branch from 1978 till May 1985. In respect of Exhs.3/D and 3/D‑1 he deposed that both these accounts were opened by him in the name of National Medical Store and Rehmani Commission Shop. This witness further deposed that handwriting and signatures in Exh.3/D and 3/D‑1 were of appellant Haroon. He described the duties of appellant as Machine Operator and stated that after discovery of fraud appellant Haroon admitted his guilt in his presence orally as well as in writing.
P.W.6 is Mr. Shankar Lal, Additional City Magistrate, who recorded 164, Cr.P.C. statement of P.W. Haji Ahmed son of Haji Habib Exh.7/A in presence of accused persons who were offered opportunity to cross‑examine the witness.
P.W.7 is Jafar son of Ismail, who has deposed that in the years 1983, 84 and 85 he was working as a Cashier in Karimabad Branch of U.B.L. Appellant Haroon had in that Branch Account No. 1118 in the name of Yousuf Medical and General Store. He produced 48 cheques drawn on that account in the year 1984 as Exhs.8/A to 8/A‑47.
P.W.8 is Javed Hassan, who was working as IInd Officer in Karimabad Branch of U.B.L. in October 1982. This witness further stated that Account No.1118 in the name of Yousuf Medical and General Store was authorised for opening by the then Manager Razak Phatani whose signature was identified by him. He further deposed that the said account was opened as partnership account and appellant Haroon signed as partner.
P.W.9 is Sirajuddin, who deposed that he had worked in F.B. Area/Karimabad Branch of U.B.L. as Current Deposit Incharge. He saw Exh.3/F pertaining to Account No. 1118 and stated that this account was opened in the names of Abdul Qudus and Haroon, whose signatures were identified by him in the opening account form. He saw deposit slips Exhs.3/G to Exh.3/G‑11 and stated that those slips were in respect of cheques deposited in Account No.1118 and were received and checked by him. Cheques deposited under the above pay‑in‑slips were all drawn on the Stock Exchange Branch of U.B.L. After these cheques were cleared by the Stock Exchange Branch payments were made. Again said payments were not made but amounts of the cheques were credited into the account of account‑holders. Amounts of cheques deposited in Account No.1118 were withdrawn through cheques with signatures of Qudus as drawer. This witness identified signatures of appellant Haroon in acknowledgement of receiving the amounts of cheques Exhs.8/A, 8/A‑10, 8/A‑12, 8/A‑15, 8/A‑20, 8/A‑23, 8/A‑29, 8/A‑31, 8/A‑38 to 8/A‑40 and 8/A‑42 to 8/A‑47. Likewise on other cheques, he identified signatures of Qudus. This witness further stated that all cheques on C.D. accounts came to him for verification before appellant. He admitted that all the cheques Exhs.8/A‑1 to 8/A‑47 were verified by him excepting Exhs.8/A, 8/A‑8, 8/A‑13, 8/A‑24, 8/A‑37, 8/A‑40, 8/A‑42 to 8/A‑46.
P.W.10 is Syed Shahid Hussain, Investigating Officer and his evidence will be mentioned in the end after evidence of all other witnesses is covered.
P.W.11 is Muhammad Motan, who was working as Cashier in Stock Exchange Branch of U.B.L. from 1979 till 1983. He knew appellant Haroon very well who was working with him in the same Branch as Machine Operator. This witness needed money as his father had sustained loss in business. He approached Haroon for loan and Haroon gave him an amount of Rs.50,000. During the investigation by F.IA. he returned the amount of loan received from Haroon.
P.W.12 is Haji Ahmed, who deposed that he knew appellant Haroon and Munaf as they were introduced to him by Haji Younus. Haroon and Munaf were interested in the business of iron and steel and had deposited with this witness total amount of Rs.7,50,000 for the purchase of iron. Ships were delayed and iron could not reach Karachi. After investigation was taken in hand by F.IA., this witness handed over money to the I.O.
P.W. 13 is Nazar Mohammad, Additional City Magistrate. He recorded judicial confession of appellant Haroon who was produced before him by F.I.A. on 4‑3‑1985. He took all the necessary precautions and administered warnings as required under the law. After giving time for reflection and satisfying himself that confession proposed to be given by appellant was voluntary, he recorded the confession, which was produced by him m the Court as Exh‑14/A.
Now we take up the evidence of 1.0. Syed Shahid Hussain, F.I.A. Inspector in the Banks Circle was examined in the trial Court as P.W. 10. On 18 2‑1985 he received written complaint from the Manager of URL, Stock Exchange Branch, Karachi. He incorporated the complaint in 154 Cr.P.C. register. He also went to the Stock Exchange Branch of U B L and arrested appellant Haroon and Abdul Qadir. On 19‑2‑1985 he arrested Qudus, Munaf and Abdul Majeed. He made searches of the houses of accused persons and recovered household articles including furniture, T.Vs and Fridges etc. He recorded statements of witnesses. Appellant Haroon had advanced money as loans to many persons, who admitted the same and returned such monies. I.O. also recovered Motor Cycles from persons which were purchased by them from monies advanced by appellant. He seized properties and stores which were purchased or being maintained by appellant Haroon and other co‑accused directly or indirectly from the money misappropriated from the Bank. I.O. also produced appellant before the Magistrate for recording of his judicial confession. I.O. also collected huge bulk of documents in support of fraud committed by appellant Haroon and his accomplices in the said Branch of the Bank. On 3‑10 1985 I.O. submitted final challans in respect of misappropriations made in the years 1980, 81, 82, 84 and 85.
In the trial Court in his statement under Section 342 Cr.P.C. appellant has proclaimed innocence and false implication in the case. Appellant has admitted working as Machine Operator in Stock Exchange Branch of URL and opening of joint Account No.2448 with U.B.L., Stock Exchange Branch and Account No.1118 with U.B.L., Federal 'B' Area Karimabad Branch. He has also admitted that Account No.2218 was in the name of National Medical Store and was being operated by co‑accused Mohammad Munaf and Abdul Qadir. He further admitted depositing cheques in Account No.1118 and drawing on Accounts Nos.2448 and 2218. He denied knowledge that funds were insufficient in Account No.2448 and 2218 and further denied allegation that he destroyed cheques and claimed that he had no concern with preparation of sheets, which showed difference of Rs.17 lacs in the cash position. He admitted having made confession before the Manager but claimed that it was given under pressure of threats. Appellant also stated that he made the confession before the Magistrate because he was beaten by Police Officer and was threatened. He denied allegation of conspiracy between him and other co‑accused to defraud the Bank. He denied having given money to Haji Ahmed but admitted that Hanif Motan had taken loan from him of Rs.50,000. Names of 16 persons were mentioned alongwith amounts recovered from them during the investigation and appellant admitted that some of those amounts recovered were his, as he had advanced loans to them. In respect of admission in writing Exh.3/C delivered to P.W. Zaki Ahmed, appellant admitted that the same was in his handwriting but was made by him in presence of police.
It may be mentioned here that statement of appellant under section 342, Cr.P.C. was recorded on 12‑2‑1987 and on that day he made an application in writing in the trial Court requesting that statement written by him separately should be treated as part of his statement under section 342, Cr.P.C. This request was allowed by the trial Court. This statement written by appellant on one leaf of school note book with green ball point is available in the record of the trial Court of Case No.9/85 (Exhibit Part) but perhaps inadvertently is not included in the paper book. Perusal of this statement shows that appellant has claimed that he had no concern whatsoever with Clearing Department and he was compelled to make admission on threats and promise that he would be reinstated and further he made confession before Magistrate on account of pressure of police. No other witness was examined in defence.
We have heard at length Mr. Abdul Sattar Pingar, Advocate for the appellant and Mr. Hazaratji…
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