THE
HIGH COURT OF SINDH AT KARACHI
Criminal Appeals Nos.805, 806 and 807 of 2022 &
Criminal Appeals Nos.08, 09, 10 and 20 of 2023
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
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Criminal Appeal No.805/2022 Mangal Das Arwani through Mr. Amer Raza Naqvi, advocate
Criminal Appeal No.806/2022 Mangal Das Arwani through M/s Amer Raza Naqvi & Syed Haider
Imam Rizvi, advocates
Criminal Appeal No.807/2022 Mangal Das Arwani through M/s Shahab Sarki & A. Rashid
Rajar, advocates
Criminal Appeal No.08/2023 Mohal Lal through M/s Muhammad Ashraf Kazi, Irshad Ahmed
Jatoi and Imtiaz Ali Jatoi, advocates
Criminal Appeal No.09/2023 Mohal Lal through M/s Muhammad Ashraf Kazi ,
Irshad Ahmed Jatoi and Imtiaz Ali Jatoi
Criminal Appeal No.10/2023 Mohal Lal through M/s Muhammad Ashraf Kazi ,
Irshad Ahmed Jatoi and Imtiaz Ali Jatoi
Criminal Appeal No.20/2023 Syed Muhammad Raza Shah through Mr. Khadim Hussain Thahim,
advocate
Respondents: The
State through Mr. Muhammad Ahmed, Assistant
Attorney General
Mr.
Hassan, advocate, holds brief on behalf Dr. Shahab Imam, advocate for Trading
Corporation of Pakistan
Date of Hearing : 05.03.2024
Date of Judgment : 05.03.2024
JUDGMENT
NAIMATULLAH
PHULPOTO, J.-- By this common judgment, we intend to decide Criminal
Appeals Nos.805, 806, 807 of 2022 and 08, 09, 10 and 20 of 2023.
2. Criminal
Appeals 805/2022, 08/2023 and 20/2023 are filed against judgment dated
17.12.2022, passed in Case No.27/2015 by learned Judge, Special Court (Offences
in Banks) Sindh at Karachi, whereby appellants Mangal Das Arwani, Mohan Lal and
Syed Muhammad Raza Shah were convicted and sentenced as under:
(a) Accused Mohan Lal committed the
offence being public servant while serving as Assistant Manager in Trading
Corporation of Pakistan (Pvt.) Ltd., therefore, he is
convicted under Section 409/34 PPC read with Section 5(2) of Prevention of
Corruption Act, 1947 and sentenced to R.1. for
Fourteen (14) Years and is also fined to Rupees Ten Million (Rs. 10,000,000/-). In
case of default of payment of fine, the accused shall suffer R.1. for Five (5) Years more. The imposition of fine on accused
is in the light of Sub Section (3) of Section 6 of the Offences in Respect of
Banks (Special Courts) Ordinance, 1984. FFENC
(b) Accused Syed Muhammad Raza Shah
and Mangal Das are also convicted under Section 109/34 PPC read with Section
409 PPC and are sentenced to suffer R.I. for Fourteen (14) Years and are also
fined to Rs.Ten Million Cash (Rs.10,000,000/- each).
In case of non- payment of fine, accused shall suffer R.I for further Five (5)
Years.
(c) Accused Mohan Lal, Syed Muhammad
Raza Shah and Mangal Das are convicted under Section 420 PPC read with Section
34 PPC and are sentenced to suffer R.I for Seven (7) Years and are also fined
to Rupees Five Lacs each (Rs.500,000/- each). In case of non-payment of fine,
accused shall suffer R.I for further Three (3) Years.
(d) Accused Mohan Lal, Syed Muhammad
Raza Shah and Mangal Das are also convicted under Section 468 PPC read with
Section 34 PPC and sentenced to suffer R.I for Five (5) Years and are fined to
Rupees Three Lacs each (Rs. 300,000/- each). In case of non-payment of fine,
accused shall suffer R.1 for further Two (2) Years.
(e) Accused Mohan Lal, Syed Muhammad
Raza Shah and Mangal Das are convicted under Section 471 PPC read with Section
34 PPC and sentenced to suffer R.I for Three (3) Years and are also fined to
Rupees Two Lacs each (Rs. 200,000/- each). In case of non-payment of fine,
accused shall suffer further R.I for One (1) Year more.
f)
All above named accused shall be entitled for the benefit of Section 382(B)
Cr.PC. All the sentences awarded to accused shall run concurrently.
3. Criminal
Appeals 806/2022 and 09/2023 are filed against judgment dated 17.12.2022,
passed in Case No.53/2015, by learned Judge, Special Court (Offences in Banks)
Sindh at Karachi, whereby appellants Mohan Lal and Mangal Das Arwani were
convicted and sentenced as under:
(a)
Accused Mohan Lal committed the offence being public servant while serving as
Assistant Manager in Trading Corporation of Pakistan (Pvt.) Ltd., therefore, he
is convicted under Section 409/34 PPC read with Section 5(2) of Prevention of
Corruption Act, 1947 and sentenced to suffer R.I. for Fourteen (14) Years and
is also fined to Rupees Twenty Million (Rs.20,000,000/-).
In case of default of payment of fine, the accused shall suffer R.I. for Five
(5) Years more. The imposition of fine on accused is in the light of Sub
Section (3) of Section 6 of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984.
(b)
Accused Mangal Das is also convicted under Section 109/34 PPC read with Section
409 PPC and are sentenced to suffer R.1. for Fourteen
(14) Years and is also fined to Rs.Twenty Million (Rs.20,000,000/-). In case of
non-payment of fine, accused shall suffer R.I for further Five (5) Years
(c)
Accused Mohan Lal and Mangal Das are convicted under Section 420 PPC read with
Section 34 PPC and are sentenced to suffer R.1 for Seven (7) Years and are also
fined to Rupees Five Lacs each (Rs.500,000/- each). In
case of non-payment of fine, accused shall suffer R.1. for
further Three (3) Years.
(d)
Accused Mohan Lal and Mangal Das are also convicted under Section 468 PPC read
with Section 34 PPC and sentenced to suffer R.I for Five (5) Years and are
fined to Rupees Three Lacs each (Rs. 300,000/- each). In case of non-payment of
fine, accused shall suffer R.1 for further Two (2) Years.
(e)
Accused Mohan Lal and Mangal Das are convicted under Section 471 PPC read with
Section 34 PPC and sentenced to suffer R.I for Three (3) Years and are also
fined to Rupees Two Lacs each (Rs.200,000/- each). In case of non-payment of
fine, accused shall suffer further R.1 for One (1) Year more.
(f)
Both the above named accused shall be entitled for the benefit of Section
382(B) Cr.P.C. All the sentences awarded to accused shall run concurrently.
4. Criminal
Appeals Nos.807/2022 and 10/2023, are filed against judgment dated 17.12.2022,
passed in Case No.59/2015, by learned Judge, Special Court (Offences in Banks)
Sindh at Karachi, whereby appellants Mohan Lal and Mangal Das Arwani were
convicted and sentenced as under:
(a) Accused Mohan Lal committed the
offence being public servant while serving as Assistant Manager in Trading
Corporation of Pakistan (Pvt.) Ltd., therefore, he is convicted under Section
409/34 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 and sentenced
to suffer R.I. for Fourteen (14) Years and is also fined to Rupees Twenty
Million (Rs.20,000,000/-). In case of default of
payment of fine, the accused shall suffer R.I. for Five (5) Years more. The
imposition of fine on accused is in the light of Sub Section (3) of Section 6
of the Offences in Respect of Banks (Special Courts) Ordinance, 1984.
(b)
Accused Mangal Das is also convicted under Section 109/34 PPC read with Section
409 PPC and are sentenced to suffer R.1. for Fourteen
(14) Years and is also fined to Rs.Twenty Million (Rs.20,000,000/-). In case of
non-payment of fine, accused shall suffer R.I for further Five (5) Years
(c)
Accused Mohan Lal and Mangal Das are convicted under Section 420 PPC read with
Section 34 PPC and are sentenced to suffer R.1 for Seven (7) Years and are also
fined to Rupees Five Lacs each (Rs.500,000/- each). In
case of non-payment of fine, accused shall suffer R.1. for
further Three (3) Years.
(d)
Accused Mohan Lal and Mangal Das are also convicted under Section 468 PPC read
with Section 34 PPC and sentenced to suffer R.I for Five (5) Years and are
fined to Rupees Three Lacs each (Rs. 300,000/- each). In case of non-payment of
fine, accused shall suffer R.1 for further Two (2) Years.
(e)
Accused Mohan Lal and Mangal Das are convicted under Section 471 PPC read with
Section 34 PPC and sentenced to suffer R.I for Three (3) Years and are also
fined to Rupees Two Lacs each (Rs.200,000/- each). In case of non-payment of
fine, accused shall suffer further R.1 for One (1) Year more.
(f) Both the above named accused
shall be entitled for the benefit of Section 382(B) Cr.P.C. All the sentences
awarded to accused shall run concurrently.
5. Learned
advocate for the appellants mainly argued that all the appeals are connected to
each other as offences were committed in same transaction and all cases require
same appreciation of evidence. However, during the course arguments, Mr. Amer
Raza Naqvi, advocate for the appellants in Criminal Appeal No.805/2022, pointed
out that examination-in-chief of PW-13 Irfan Ahmed was recorded by the trial
Court at Ex.33, he produced cheques at Ex.13/A to 13/A/3, but cross-examination
of PW-13 Irfan Ahmed was reserved on written application moved by
appellant/accused Mangal Das Arwani. Thereafter, PW-13 Irfan Ahmed was not re-called
by the trial Court for cross-examination by appellant Mangal Das Arwani or his
counsel but trial Court closed the prosecution side and statements of accused
were recorded under Section 342, Cr.PC. Thereafter, conviction was recorded
against appellants Mangal Das Arwani and others. It is argued that illegality
committed by the trial Court in conducting trial is not curable under the law.
Learned advocate for appellants further argued that learned Judge, Special
Court (Offences in Banks) Sindh, Karachi lacked jurisdiction in the matter,
despite that judgment has been passed and it was coram non judice and prayed
that the conviction and sentence may be set aside and the case may be remanded
back to the trial Court for cross-examination of PW-13 Irfan Ahmed and
recording statements of accused under section 342, Cr.PC afresh and deciding all
the cases on merits while considering the point of jurisdiction.
6. It
is matter of record that evidence of PW-13 Irfan Ahmed was recorded by trial
Court on 09.03.2020 but his cross-examination was reserved on written request
submitted by accused Mangal Das Arwani. Prosecution side was closed on
09.02.2021, without recalling PW-13 Irfan Ahmed for his cross-examination by
the defence counsel. Thereafter, trial convicted and sentenced the appellants
above named. Learned trial Court has committed illegality by not recalling
PW-13 Irfan Ahmed for his cross-examination and such illegality is not cureable
under the law. Moreover, learned advocates for the appellants jointly submitted
that point of jurisdiction was raised before the trial Court but it was not
decided by the trial Court and prayer has been made for remand of the case.
Assistant Attorney General recorded no objection.
7. In
the view of above, conviction and sentence recorded by the trial Court in the
aforesaid cases vide judgment 17.12.2022 are set aside. Cases are remanded back
to the trial Court for recalling PW.13 Irfan Ahmed in Case No.27/2015 for his
cross-examination. Thereafter, statement of accused Mangal Das Arwani, Mohal
Lal and Syed Muhammad Raza Shah shall be recorded afresh in accordance with
law. Trial Court, after hearing the learned counsel for the parties, shall
decide all the cases afresh, while recording the finding on the point of
jurisdiction also. It may be observed that cases are old of 2015, trial Court
is directed to decide the cases within two months under intimation to this
Court through MIT-II.
8. At
this stage, some of the advocates for appellants/accused pointed out that some
accused were on bail during trial and prayed for extending them concession of
bail. Since the cases are remanded back to the trial Court, accused will be at
liberty to apply for bail before the trial Court, the same shall be decided by
the trial Court strictly in accordance with law. The trial Court is directed to
issue P.O. for accused Mangal Das Arwani on the date of recording the
cross-examination of PW.13 Irfan Ahmed and recording of statement of accused
under section 342, Cr.PC afresh.
The
appeals are disposed of in the above terms.
J U D G E
J
U D G E
Gulsher/PS