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Petitioner: RAMZAN ALI HEMANI VS Respondent: THE STATE through Director-General (NAB)
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Muhammad Ather Saeed Title: RAMZAN ALI HEMANI vs THE STATE through Director-General (NAB) Case No.:Criminal Accountability Appeal No. D-06 of 2010 and Constitutional
JUDGMENT
Reported As: 2011 P Cr. L J 1690 Result: Appeal dismissed Judgment JUDGMENT IRFAN SAADAT KHAN, J.---This is an appeal under section 32 of the National Accountability Bureau Ordinance, 1999 ("the NAB Ordinance") against the Judgment dated 6-4-2010 passed in NAB Reference No.7 of 2005 by the Accountability Court No.1, Sindh Karachi convicting the appellant under section 10 of the NAB Ordinance and sentencing him to undergo R.I. For 14 years with fine of Rs.317.019 million after deducting Rs.15 million already recovered from him as fine and in case of default in payment of fine to further suffer R.I. For four years. The properties belonging to the appellant were also ordered to be confiscated. The appellant was also disqualified for 10 years to hold any public office or contest for election. However, benefit under section 382-B, Cr.P.C. Was extended to him. 2. Briefly, the facts of the case are that the appellant is a graduate from University of Karachi and joined Habib Bank Limited (HBL) in 1964 (when the bank was a private bank) as Cashier. The bank was nationalized in 1974 and was again privatized in the year 2004 and the appellant continued to remain an employee of the bank. During his service he served as Manager, HBL, Empress Market Branch from July, 1996 to 16 June, 2001 and Manager HBL, Bohra Bazar Branch, from 10 July, 2001 to 6 February, 2005. According to the statement of P.W.1, Muhammad Younus, on 7 October, 2005, he along with a team of officers of the Bank, namely, Umer Riaz, Vice-President, P.W.2, Masood-ul- Hassan, P.W.3, and Muhammad Naseem, P.W.4 went to the said Branch on the instruction of the high officials of the bank. It is stated that when these persons reached the bank at 9-00 a.m. The appellant was not in the bank, however, he arrived at 9-10 a.m. And on the instructions of P.W.1,
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opened the Strong Room and handed over the cash to Mr. Kausar Ali, P.W.5, who started physical checking and counting the cash. While the process of physical checking of the cash was underway the appellant left the Bank without informing the P.W.2 or any other person. However, subsequently, it transpired that he had left the bank to attend his ailing mother. While the bank officials were investigating the matter, a customer of the bank, namely, Haji Zafar. Came along with his wife for obtaining a pay order of Rs 300,000 but he was informed by the bank officials that sufficient amount was not available in his account. Upon knowing this Haji Zafar started raising voice and claimed that he had more than One Million Rupees in his bank account. When the other customers, who were present in the bank, came to know about this alleged discrepancy, they also approached the cashier to inquire about their account balances and suddenly the matter started getting bad to worse. The high ups of the bank were immediately informed who directed investigation into the matter and P.W.1 to take over the charge of the bank as Manager on the instruction of the high officials of the bank, the matter was also referred to the Chairman, National Accountability Bureau (NAB), who instructed for an inquiry and thereafter the appellant was arrested in the matter. 3. On 28-2-2005 the appellant was, produced before the Administrative Judge, Accountability Court at Karachi. After a thorough inquiry it was found that the appellant was involved in parallel banking, falsification of bank accounts, opening of fictitious accounts and A misappropriation of funds of public-at-large. It was also found that the appellant used to receive cash under his own signatures on deposit slips directly from the customers and also used to mention lesser amounts in the relevant ledgers/statements thus manipulating the accounts. A number of other allegations were also levelled against the appellant by way of transferring amounts to different accounts and clearing them without due process of law. It was also found that the appellant had opened certain fictitious accounts from which he used to conduct some illegal business of transferring the amounts. It is alleged that approximately 9 million rupees had been misappropriated by the appellant from the accounts`' of the Executive District Officer Malir Development Authority and in all a shortfall in 117 accounts in the sum of Rs.232.589 million was detected, while a sum of Rs.90 million was embezzled by way of showing fictitious entries in clearing proceeds. As per the inquiry after unearthing the scam of misappropriating in accounts an amount of Rs.38.763 million was recovered from the appellant and Rs.27.150 million was paid over to the account holders and some other persons who had lodged their claims with the bank or the NAB authorities. Thus, a total liability of Rs.297.610 million was worked out against the appellant. During the investigation it was also, discovered that the appellant had indulged in trading of shares in the Karachi Stock Exchange in a factitious name of some Raza Hussain and for this purpose had maintained five accounts in the name of different persons, which all were fictitious and based on forged documents. 4. In all 7 P.Ws. Were examined in the case and the learned Judge, after examining all the P.Ws. And going through the entire material on the record placed before him, came to the conclusion that the appellant had indulged and was involved in the above mentioned illegal activities and vide the impugned judgment convicted and sentenced him in the manner prescribed above. It is against this judgment that the present appeal has been filed by the appellant. 5. We had heard Mr. Shafat Nabi Sherwani, learned counsel for appellant, Mr. Muhammad Aslam Butt, Deputy Prosecutor-General NAB, and Mr. Iqtidar Ali Hashmi, learned counsel for complainant. 6. Initiating his arguments, Mr. Shafaat Nabi Khan Sherwani, the learned counsel for the appellant first read out the statement of appellant under section 342, Cr.P.C. Recorded on 3-1-2008 before the trial Court. He then took us through the charge and also referred to Reference No.7. Of 2005 and
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then elaborated on the direct examination and on the cross-examination of the Star witness of prosecution i.e. Muhammad Younus P.W.1 and tried to pinpoint the discrepancies which had emerged in his examination and cross-examination and then argued the case point wise. The first point argued being that the learned trial Court had not applied its mind and had reached to the decision by ignoring the submissions of the defence and had not given any finding on these submissions. In this connection he relied on a judgment of the Hon'ble Supreme Court of Pakistan in the case of FASIH-UD-DIN KHAN and others v. GOVERNMENT OF PUNJAB and others reported in 2010 SCMR 1778 and in the case of GULZAR AHMED v. THE STATE reported in 2010 PCr.LJ 1438. 7. The next point on which the learned counsel argued was that the burden lies on the prosecution to prove its case beyond the shadow of doubt and until and unless prosecution proves its case the burden does not shift to the defence and according to the learned counsel in this case the prosecution has not been able to make out a case free from doubt and had not submitted cogent arguments and sufficient material evidence before the learned trial Court on which the prosecution case could be allowed. He therefore, submitted that despite the fact that he had advanced his arguments which were not properly appreciated by the learned trial Court and on misreading of the evidences and distortion of facts the judgment was rendered against him. In this connection he relied on Article 129 of the Qanun-e-Shahadat and section 14(C) of the NAB Ordinance and in support of his arguments, the learned counsel relied on the following judgments:-- (1) Syed Qasim Shah v. The State (2009 SCMR 790) (2) Mansur-ul-Haq v. The Government of Pakistan (PLD 2008 SC 166) (3) Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607) 8. He further submitted that the learned trial Court has not appreciated the facts of the case and has not considered the evidences placed before it. While elaborating his view point he submitted that the documents produced by P.W.1 and relied upon by the trial Court were against the terms of Article 72 of the Qanun-e-Shahadat Order, 1984 as the parameters given in the said Article have not been fulfilled. He further submitted that the learned trial Court has not appreciated that the proof of signatures and the handwriting alleged to be that of the appellant were not produced in terms of Article 78 of the Qanun-e-Shahadat Order, 1984, which rendered the whole case doubtful. He submitted that the signatures of the appellant were accepted by making sweeping remarks that P.W.1 was well conversant with the signatures of the appellant without fulfilling the requirements of Article 84 of the Qanune-Shahadat Order, 1984. In the end the learned counsel submitted that the trial Court has committed grave error in misreading and non-reading of the evidences and passed a totally illegal judgment which needs to be set aside, as according to him the case of the prosecution is based on no evidence. In support of his above contentions, the learned counsel relied on the following decisions: (1) Hakim Ali Zardari v. The State (2007 MLD 910) (2) Khizar Hayat v. The State (PLD 2011 Kar. 52) (3) Riaz Ahmed v. The State (2010 SCMR 846)
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9. Mr. Muhammad Aslam Butt, learned D.P.-G., NAB, appeared on behalf of the NAB and submitted that the learned trial. Court, not only after examining the P.Ws. But also examining the entire material produced before it through an exhaustive and erudite judgment has come to the right conclusion that the charges levelled against the appellant were duly proved and as the appellant was not only running parallel banking business but also misappropriated the accounts of public- at-large of which he was the custodian. He submitted that the appellant deserves no mercy and leniency and his appeal may be dismissed. 10. The learned counsel also submitted that the appellant has also filed an application for grant of pardon under sections 25(a) and 26 of the NAB Ordinance which amply proves that he was involved in committing the above mentioned offences and in support of his contentions the learned counsel has relied on the judgment in the case of Saeedullah Soomro v. The State (2011 YLR 144) authored by one of us, namely, Irfan Saadat Khan, J. Wherein, according to the learned counsel, the Division Bench, after finding the said person to be involved in accumulating wealth from unknown sources, has convicted him. The learned Counsel in the end submitted that the appeal filed by the appellant may be dismissed. In support of his above contentions the learned counsel also relied on the decision in the case of China Petroleum Engineering Construction v. Khattak Allied Construction Company (2004 SCMR 1777). 11. Mr. I.A. Hashmi appeared on behalf of the complainant Bank and supported the arguments of the learned DPG, NAB and stated that he adopts the arguments of Mr. Aslam Butt and submitted that due to the misappropriation made by the appellant the goodwill of the'bank has not only been tarnished but the bank had made the losses of the account holders good. Thus, in a way, the bank has doubly suffered firstly on account of loosing its goodwill and credibility and secondly on account of making the losses of the account holders good. He, therefore, submitted that the present appeal may be dismissed and the judgment passed by the learned trial Court may be maintained. 12. In his rebuttal Mr. Sherwani submitted that as his application under section 25(a) of NAB Ordinance is pending hence the appellant could not be convicted and relied upon the following decisions:-- (1) PLD 2007 Karachi 43. (sic) (2) Saleem Raza v. The State. (PLD 2007 Karachi 139) (3) The State v. Khalid Aziz (2011 SCMR 136) 13. We have heard the learned counsel for the parties at considerable length and have perused the record and the case laws relied upon by them. 14. The deposition of P.W.1 Muhammad Younus Khan son of Abdul Sattar Khan, Manager Habib Bank, Bohra Bazar Branch, Karachi, which is available from pages 113 to 1616 of the paper book, reveals that he joined the Bank as Typist in 1974 and at present is working as Grade-1 Officer and Manager of the Bank. On instructions of his superior, on 7-2-2005 he went to Bohra Bazar Branch at about 9- 00 a.m, along with Muhammad Umar Riaz, Vice-President ICD RHQ, Karachi Region-A, and Masoodul Hasan OG-I and Muhammad Naseem Khan 0G-I. However, when these persons reached the Branch, the appellant was not available in the Branch and arrived at 9-10 a.m. After his arrival in
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the Branch the appellant opened the strong room with his key along with the keys of other offices, and took out the cash from safe and handed over the same to Kausar Ali Naqvi 0G-II, who started physical checking of the same. Thereafter the appellant left the Branch leaving his keys on the table. P. W.1 waited for the return of the appellant but he did not come. While this process was going on one customer of the Bank namely Haji Zafar, who came along with his wife for getting a pay order of Rs.3,00,000, started raising voice when he was informed that sufficient funds were not available in his account to issue the pay order. Upon knowing this he showed a receipt of the Bank declaring balance in his account to be more than Rs.10,00,000. Other persons present in the Branch also enquired about their balances and when they came to know that the balance in their respective accounts was less than what they had deposited they also started raising hue and cry. Considering the sensitivity of the situation the high-ups of the Bank were immediately informed and Mr. Manzoor Ahmed Rajput, RGM Operation, arrived the Bank and sympathized with the customers and assured them that there was no need to worry and all the customers will get their due amounts which they had deposited with the Bank. 15. When the appellant did not turn up, after taking the permission from the high-ups, P.W.1 took over the charge of the Branch as Manager at about 12-00 noon. All day long the customers kept coming in and enquiring about their balances and in almost every account there were manipulations. ,As per P.W.1 in about 2/3 days time he received 117 claims amounting to Rs.232.587 million. Thereafter the matter was referred to NAB on the directions of the high officials of the Bank. According to P.W.1 some more claims were also received by him, which in all came to 141 claims amounting to Rs.255.687 million. The detail of the claims include manipulation in SNTD Accounts, Profit & Loss Sharing Accounts and manipulation in Daily Cash Receiving Registers etc. He thereafter also produced complete details of these accounts showing that all these manipulations have been done by the appellant in his own handwriting. A detailed series of these manipulations had been given in his deposition which is not reproduced here for the sake of brevity. However perusal of which shows hefty manipulations duly based on proper documentary evidences. P.W.1 has further affirmed that the total embezzlement made by the appellant comes to Rs.345,696,186 out of which certain accounts were settled and remaining are pending. Out of the said amount an amount of Rs.39,866,401 was recovered from the appellant, however, the net loss suffered by the Bank, due to the misappropriation made by the appellant, comes to Rs.305,829,785. A complete summary in this regard was also produced by P.W.1. 16. P.W.1 further submitted that though a proper cashier of the Bank was posted, whose job is to collect the cash and sign the counter slip, but it is strange that it was the appellant used to receive the cash directly from the customers and sign on these counter slips. P.W.1 further affirmed with vehemence that he can say without any doubt that all the slips produced by him were signed by the appellant as he is well conversant with the signatures and the handwriting of the appellant. He further stated that he had no enmity with the appellant to falsely implicate him in the present case and he has done his duty as assigned to him by the Bank. He also produced in this regard specimen signatures card of the appellant and the signatures of the appellant made on various documents, which according to P.W.1 are one and the same. He further submitted that the mala fide on the part of the appellant is evident from the fact that he was using one discarded stamp of the Bank for receiving the cash whereas it is Bank's procedure to destroy and discard the old stamp but the appellant was illegally using the said discarded stamp for his ill intentions to usurp the amounts of the innocent account holders and to play foul with the Bank's funds. However, it is to be noted that the said stamp recovered was neither sealed nor was it recovered under a seizure memo.
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17. P.W.1 further submitted that the appellant was running a parallel banking business which is evident from the fact that certain fictitious bank accounts were operated by him which were maintained by him in which he used to transfer the money and take out the same to promote his private business. P.W.1 in this regard also produced documents which were exhibited. P.W.1, however, admitted that the alleged fictitious entries were not detected by the Bank but were discovered only when the slips maintained by the account holders were produced. P.W.1 also admitted that he cannot testify the act which is not done in his presence and also admitted that every financial document of the Bank has to be signed by two officers. He also admitted that the documents exhibited by him were not sent to an expert for forensic report. He also admitted that the documents produced and exhibited by him were never sent to any handwriting expert. He also admitted that Headquarter used to issue bi-annually bank statement to each account holder and Branch has got nothing to do in this regard. He also admitted that he made a complaint to the NAB on the instructions of the Headquarter. He also admitted that an enquiry was conducted by the Headquarter but he is not aware of ultimate findings given in this regard by the Headquarter. He also admitted that no liability could be created without signature of two officials on the financial document. 18. He further admitted that initially 21 persons were implicated in this case. He also admitted that the documents produced by him in the Court spread over ten years. He also admitted that he produced before the Court some documents which were not produced by him at the time of recording of his 161, Cr.P.C. Statement. He also admitted that the investigation made by the Head Office was the opinion of the Head Office only and not that of his. He also admitted that specimen signatures of the appellant were never produced before the 1.0. While recording his statement under section 161, Cr.P.C. He also admitted that the Cashiers were not called to examine the receipt. However, voluntarily said that there was no need as these slips do not contain the signatures of the Cashiers rather they contain the signatures of the appellant. However, he submitted that all these documents have been exhibited and contain the signatures of the appellant. In the end, P.W.1 submitted that whatever he has deposed was based on the documentary evidences and there was neither any personal grudge nor any enmity with the appellant, hence, the question of either levelling false charges against the appellant or implicating him falsely does not arise. 19. P.W.2 Muhammad Umer Niaz son of Ayaz Ahmed Siddiqui, Deputy General Manager HBL, in his deposition reiterated the same facts as that of P.W.1. 20. P.W.3 Muhammad Raza son of Hyder Ali, Manager HBL Manipur Branch, Karachi, in his deposition also narrated somewhat same story and stated that he, is well conversant with the signatures of the appellant and affirmed that the signatures of the appellant appearing on certain exhibits and documents were that of the appellant. He in this regard pointed out to certain exhibits belonging to certain account holders and thereafter affirmed that the same bears the signatures of the appellant. He, however, submitted that SNTDs which bear the signature of the appellant were neither prepared nor signed by the appellant in his presence. He also affirmed that he had not seen certain documents prior to his appearance in the Court, however, submitted that these documents bore the signatures of the appellant. 21. P.W.4 Muhammad Asad son of Muhammad Abdul Hafeez (the then V.P. Regional Assistant General Manager Internal Audit Cash and Pak Account Reconciliation) also reiterated the same facts as that of P.W.1 and submitted that as he was informed that a panic had occurred in the
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Branch and when he reached the Branch Mr. Manzoor Ahmed Rajput, Umer Niaz and Muhammad Younus Khan were already present there. He submitted that when he reached the Bank there was complete chaos in the Bank and a number of people were present and were raising hue and cry to know about their balances. He stayed in the Branch till Maghrib prayers and till the time he left the Bank the customers were pouring in to know about their balances. He submitted that though he visited the Branch on 7-2-2005 but was not aware who was the Incharge Manager of the Branch as at the time he visited the Branch P.W.1 was sitting on the Manager's seat. However, he submitted that he received a number of applications from the customers which he handed over to Mr. Umer Niaz and Mr. Muhammad Younus. 22. P.W.5 Manzoor Ahmed Rajput son of Nawaz Khan Rajput, Deputy General Manager HBL, also narrated the same facts as that of P.W.1. However, he submitted that he reached the Branch on 7- 2-2005, controlled the situation which was getting out of control and asked the customers to remain calm and do not worry as all their amounts will not only be settled but will also be given to them accordingly. He provided to the I.O. The posting orders of the appellant, his specimen signature card and power of attorney issued by the Bank in his favour. He also submitted that the appellant was arrested on 26-2-2005 in his presence and he was a witness of the arrest. He also submitted that at the time of arrest of the appellant he appeared to be in a normal condition. 23. Deposition of P.W.6 Syed Saifuddin Ahmed son of Elamuddin Ahmed, Executive Vice-President and Head of the Investigation Wing stated that he received a complaint against the appellant he then called I.O. Ghulam Farooq who produced arrest warrant to him and thereafter the appellant was arrested on 26-2-2005 in his presence. He further submitted that the appellant produced certain vouchers before him and a sum of Rs. 11 Million was also recovered from him. He submitted that the entire emoluments were collected in his presence. He also admitted that some 20 persons were terminated in the present case. He further admitted that he was not aware whether emoluments of those 20 persons were forfeited and adjusted or not. He also affirmed that as per his knowledge some 150 claims were made by the customers and most of them were settled. He also admitted that among the claims there were a number of false claims which were refused by the bank. He also admitted that the locker was opened with the help of the appellant and it is incorrect to suggest that the said locker was broken. He also stated that it is incorrect to suggest that the bank has not sustained any loss due to the adjustments of the emoluments of 20 persons who were employees of the bank. 24. The deposition of P.W.7 Ghulam Farooq son of Usman Muhammad, Additional Director, NAB Karachi reveals that he was appointed I.O. In the case on 26-2-2005. He also admitted that the appellant was arrested in the presence of mushirs Saifuddin and Manzoor Ahmed Rajput. He submitted that during his investigation he collected the documents from the bank and the complainant of the case and also examined some 67 witnesses including the effectees of the case. He also submitted that he also seized a note book from one Syed Musham Ali in presence of mushir Muhammad Hashim Qureshi and Zain-ul-Abidin from where it revealed that the appellant made investments with one Stock Broker Khawaja Aamir Ishaq, who also affirmed the same and documents in this regard were also produced in the court. He further submitted that during the investigation he found the appellant involved in parallel Banking misappropriation, falsification of accounts, misuse of authorities and engaged in illegal businesses.…
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