ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.378 of 2016

Present:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Mohammad Karim Khan Agha

Appellant: Muhammad Babar son of Muhammad Saleem through Mr. Muhammad Nadeem Khan, advocate

Respondent: The State through Mr. Muhammad Shoaib Mirza, Assistant Attorney General

Date of hearing: 02/11/2018

J U D G M E N T

NAIMATULLAH PHULPOTO, J:- Muhammad Babar son of Muhammad Saleem, appellant, was tried along with Syed Junaid Ali Shah son of Syed Fida Hussain by learned Special Judge (Offences in Banks) Sindh at Karachi in Case No.08 of 2014, arising out of FIR No.06/2014, registered at FIA CBC, Karachi under sections 419/420/468/471/109/34, PPC. On conclusion of trial, vide Judgment dated 21.12.2015, co-accused Syed Juanid Ali Shah was acquitted, however, appellant Muhammad Babar was convicted and sentenced under sections 419/420/468/471, PPC for 5 years R.I. on each count and fine of Rs.500,000/- on each count was ordered. In case of default in payment of fine, he was ordered to suffer further R.I. for 01 years on each count. All the sentences were ordered to run concurrently. Appellant was extended benefit of Section 382-B, Cr.PC.

2. Brief facts of the prosecution case are that on complaint of Farooq Aslam, Regional Head (South) Fraud Risk Management, Dubai Islamic Bank Pakistan Limited, an inquiry was conducted in the case/crime, wherein it came on surface that accused persons namely Muhammad Babar and Syed Junaid Ali Shah were in possession of original (lost) CNICs of other persons having extreme facial resemblance, cheated the Bank. It is alleged that accused Muhammad Babar, found in possession of CNIC of Zubair Ejaz son of Sheikh Ejaz Ahmed, CNIC No.35202-9480534-3 in connivance of his other accomplices had withdrawn an amount of Rs.4,60,000/- from joint account of Naseem Fatima Muhammad Ayub, maintained at Dubai Islamic Bank Pakistan Limited, Avari Towers Branch, Karachi. Besides above, accused had also attempted to withdraw certain other amounts from the same account from various online branches of DIBPL, Karachi. They firstly obtained the credential secret information of the above mentioned account from their sources in the Bank. Thereafter, through submitting Customer Personal Information Addition / Change Form (CPI Form) bearing fake signatures of the account holder, they changed the actual contact number of the account holder. The CPI form along with the manufactured copy of CNIC of account holder was submitted in the Bank by accused Muhammad Babar which was received in the Branch by Ahmed Haroon, Senior Financial Consultant, Dubai Islamic Bank Pakistan Limited, Avari Towers Branch, Karachi, who also endorsed that copy of CNIC with rubber stamp of “Original Sighted” and put his signature on the same without having seen the original CNIC of the customer. Later on, the actual contact number of the account holder was changed and afterwards from that newly updated number of the accused person made a call to bank and requested to issue a new cheque book of the above mentioned account. After having confirmation that the cheque book was ready, accused Muhammad Babar took the delivery of cheque book from the bank through authority letter which was also bearing the fake signatures of the account holder. The authority letter was in favour Zubair Ejaz whereas the bank staff made over the delivery of the cheque book to Muhammad Babar who was posing himself as Zubair Ejaz. Thereafter, the cheque book acknowledgement receipt was also submitted in the bank by Muhammad Babar on the same date which was again bearing the fake signatures of account holder. During said entire process Masood Salahuddin, Cluster Manager Operations, Dubai Islamic Bank Pakistan Limited were found responsible, who was the authorized officer of the entire process but he failed to identify the fraud which resulted loss of Rs.460,000/- to the account holders which ultimately caused loss to bank and wrongful gain to accused persons. Besides this, accused Syed Juanid Ali Shah also opened two accounts, one in PKR and other in US$ in Dubai Islamic Bank Pakistan Limited, Gulistan-e-Jauhar, Karachi in a fraudulent manner by using CNIC of Syed Muhammad Asif Rizvi with the active connivance of Syed Jazib Ali, Assistant Relationship Manager, Dubai Islamic Bank Pakistan Limited, Gulistan-e-Jauhar Branch, Karachi, thereafter instrument i.e. Cheque dated 07.02.2013 amounting to Rs.46,50,000/- of the account of Muhammad Abid (account holder of Faysal Bank) was deposited with the fake signatures of the account holder but the same was detected by concerned Bank. Therefore, FIR bearing Crime No.06/2014 under sections 419, 420, 468, 471, 34, PPC was registered at P.S. FIA, CBC, Karachi. After usual investigation, IO submitted final report before the trial Court under the above referred sections.

3. Trial Court framed charge against the accused for the offences under Sections 419, 420, 468, 471, 109, 34, PPC at Ex.2. Accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined PW-1 Farooq Aslam at Ex.3, PW-2 Masood-ul-Haq at Ex-3, PW-3 Naseem Fatima at Ex.7, PW-4 Muhammad Ayoob at Ex.8, PW-5, Syed Faisal Ali at Ex.9. Thereafter, prosecution side was closed vide statement at Ex.11.

5. Statement of accused was recorded under section 342, Cr.PC at Ex.12. Accused claimed false implication in this case and denied all the prosecution allegations. However, he raised plea that the PWs have deposed falsely against him in order to get insurance claim. Accused declined to give statement on oath and did not lead any evidence in defence.

6. Learned trial Court after hearing the learned counsel for the parties and assessment of evidence convicted and sentenced the appellant as stated above, hence instant appeal is filed.

7. Mr. Muhammad Nadeem Khan, advocate for the appellant, after arguing the appeal at some length confined his arguments that the trial court has failed to pass the judgment as provided under section 367, Cr.PC. Learned advocate for appellant has argued that points for determination have not been formulated and discussed separately by the trial court and reasons have not been assigned. He further argued that under section 367(2), Cr.PC, trial court has failed to specify the offence and sections of the Pakistan Penal Code separately and in general terms, convicted and sentenced the appellants for offences under sections 419/420/468/471, PPC and jointly imposed fine of Rs.500,000/- on each count under the above sections. Learned advocate for the appellant lastly contended that failure of the trial court to specify the points for determination and recording reasons under section 367, Cr.PC, was not curable under Section 537, Cr.PC. In support of his contentions, he relied upon the cases of FARRUKH SAYYAR and 2 Others vs. Chairman, NAB, Islamabad and others (2004 SCMR 1).

8. Mr. Muhammad Shoaib Mirza, Assistant Attorney General, conceded to contentions raised by learned advocate for appellant and argued that trial court, while passing the impugned judgment, ignored the mandatory provisions of section 367, Cr.PC and submits that the case may be remanded back to the trial court for re-writing the judgment in accordance with law.

9. After hearing the learned counsel for the parties, we have carefully perused the impugned judgment dated 21.12.2015, passed by learned Special Judge (Offences in Banks) Sindh at Karachi. At page 4 of the judgment, learned trial court has discussed and decided the points 1, 2 and 3 together. Learned trial court has failed to specify the points for determination and no separate decision/reason(s) has been recorded with regard to Sections 419, 420, 468, 471, PPC, for which the appellant was charged. Appellant on the conclusion of the trial, vide judgment 21.12.2015 has been convicted and sentenced as under:

(a) Appellant Muhammad Babar was convicted and sentenced under sections 419/420/468/471, PPC and sentenced him to suffer 5 years R.I. on each count and fine of Rs.500,000/- on each count. In case of nonpayment of fine, he shall suffer further R.I. for 01 years on each count.

(b) Sentences of the convict on all the counts, shall run concurrently.

10. Section 367, Cr.PC provides that judgment should contain point or points for determination and decision thereon and shall record reasons for decision. Section 367(2), Cr.PC provides that judgment should specify the offences and the sections of the Pakistan Penal Code or other law under which the accused is convicted and the punishment to which he was sentenced. In the present, case, the impugned judgment dated 21.12.2015, neither mentions the separate section of law under which the appellant was convicted nor reasons for convicting the appellant under sections 419, 420, 471, 34, PPC have been separately recorded. So far as, fine under the above referred sections is concerned, it has also not been separately imposed. Evidence with regard to the above charges has also not been separately discussed by the learned trial court. Failure of the learned trial court to specify the points for determination and collective decision without reasons as required under section 367, Cr.PC is an omission, which is not curable under section 537, Cr.PC and absence of the decision on the said points and reasons in the judgment amounts to an illegality, which has caused prejudice to the case of the accused. The Honourbale Supreme Court in the case of FARRUKH SAYYAR and 2 Others vs. CHAIRMAN, NAB Islamabad and Others (2004 SCMR 1) has laid down the following principles:

“2. We have heard the learned counsel for the parties at length and have also perused the impugned judgment. It is a mandatory requirement of section 367, Cr.P.C. that a Court while writing a judgment shall refer to the point or points for determination, record decision thereon and also give reasons for the decision. The Court shall also specify the offence of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced. In the present case the learned trial Court overlooked the mandatory provisions of section 367, Cr.P.C. and rendered a judgment which falls short of the requisite standard. Failure to specify the points for determination as required under section 367, Cr.P.C. is an omission which is not curable under section 537, Cr.P.C. and absence of decision on the points for determination and" reasons in the judgment amounts to an illegality which prejudices the case of the accused.

3. It was contended by the learned counsel for the petitioners that the High Court having heard the case as an Appellate Court was not empowered to remand the case for writing a fresh judgment in view of clause (b) of section 423, Cr.P.C. which reads as under:--

"(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3)' with or without such reduction and with or without altering the finding, alter the nature of the sentence, but subject to the provisions .of section 106, subsection (3), not so as to enhance the same."

The argument is not tenable for the short reason that the impugned judgment is fully covered by clause (d) of section 423, Cr.P.C. which is too relevant to be ignored or overlooked. It reads as under:--

"(d) make any amendment or any consequential or incidental order that may be just or proper."

4. Learned counsel for the petitioners further contended that the High Court itself ought to have written the judgment instead of remanding the case which in fact amounts to retrial of the petitioners. E The contention cannot prevail because; firstly, the case has been remanded for fresh hearing and judgment and not for retrial of the petitioners and, secondly, the remand order is in line with the law laid down by this Court in Sahab Khan v. The State 1997 SCMR 871. The judgment recorded by the High Court in that case did not meet the requirements of section 367, Cr.P.C. inasmuch as it neither dealt with the points for determination nor contained evaluation of the evidence and reasons for arriving at the conclusion. The judgment was set aside and the case was remanded to the High Court for fresh hearing and fresh judgment with the following observations:--

"Without going into the merits and demerits of the case of the parties, we hold the view that criminal appeals referred to above were not decided in the light of afore-noted statutory provisions. They shall, therefore, be deemed to be still pending adjudication. Needless to state that at the appellate stage, whole original case stands reopened for its hearing and decision in accordance with law. Such-like appeals cannot be decided summarily without analytically discussing the evidence on record. The appeals of the parties were required to have been decided in accordance with the evidence. This could not be done for no obvious legal reasons. The learned counsel has attempted to argue that both the appeals may be heard and decided on merits by this Court to do substantial justice between the parties. We cannot substitute our opinion/decision with the one which is still to be given by the High Court on the basis of evidence available on record."

Resultantly, the petitions are dismissed and leave refused.

11. In a recent judgment in the case of IRFAN and another vs. MUHAMMAD YOUSUF and another (2016 SCMR 1190) it has been held as under:-

“6. Under the provisions of section 367(2) and (3), Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case, no separate sentence was awarded to the appellants under section 7(a), A.T.A. by the Trial Court or the High Court, as explained above. This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise under section 302(b), P.P.C. alone, because it cannot be construed nor it is permissible under the law to hold that the appellants were impliedly sentenced to imprisonment for life under section 7(a), A.T.A. as well. The provision of section 367, Cr.P.C. provides that the Court determine first the guilt of the accused and then to pass judgment of conviction whereafter the sentence shall follow.

Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he/they were also sentenced under section 7(a), A.T.A. by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of subsections (2) and (3) of section 367, Cr.P.C.”

12. Learned Assistant Attorney General has conceded that trial court has failed to pass judgment according to Section 367 Cr.PC and prayed for remand of the case to the trial court for re-writing the judgment according to law.

13. For the above stated reasons, we have no hesitation to hold that trial court over looked the mandatory provisions of section 367 Cr.PC. Therefore, conviction and sentence recorded by the trial court vide judgment dated 21.12.2015 are set aside. Case is remanded back to the trial court for re-writing the judgment in the light of the above observations and the dictum laid down by the Honourable Supreme Court in cases of FARRUKH SAYYAR and 2 Others and IRFAN and another (Supra). The appellant is present in Court, he shall appear before the trial court on 27.11.2018. Learned trial court, after hearing the learned counsel for the parties, shall pass the judgment afresh within two months, in accordance with law.

14. Criminal appeal is partly allowed in the above terms.

J U D G E

Gulsher/PS