ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeals No. 71 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Malik Gaddi

Date of Hearing : 18.10.2017 .

Date of announcement

of judgment : 23.10.2017 .

Appellant : Yawar through Mr. G.M.Bhutto Advocate.

Respondent : The State through Mr. Ashfaq Rafiq Janjua Assistant Attorney General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Yawar son of Gul Zaman appellant was tried along with co-accused Mohammad Raheel Qureshi, imran Memon, Syed Arif Hussain Rizvi, Farhan, Mohammad Irshad and Kashif Johny by learned Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi in Case No. 100/2011. After full-dressed trial, by judgment dated 21.01.2017, appellant was convicted and sentenced as under:

a) Convict the accused Yawar s/o Gul Zaman u/s 420/468/471 PPC and sentenced him to suffer 07 years R.I on each count and fine of Rs.5 lacs on each count. In case of non-payment of fine he shall suffer further R.I for 02 years on each count.

b) He shall be entitled to the benefit of section 382(B) Cr.P.C. All the sentences of each count shall run concurrently.

2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Mohammad Habib of NIB Bank Mohammadi House, I.I. Chundrigar Road Branch, Karachi made a complaint about forged/counterfeit cheques and encashed through online from various NIB Branches and such complaint was incorporated in the FIR. It is mentioned in the compliant that group of culprits were activated in damaging the bank by making and producing forged/counterfeited cheques, therefore, the bank reconciled the customers’ account regarding such transactions and it was found that alleged cheques were encashed through online by third party whereas original cheque leaves were in possession of customers but amount were withdrawn from their accounts through fake cheques being same series as issued to the customers. The transactions of alleged forged ch3ques which are 59 in numbers are mentioned in the complaint. It is further stated in the compliant that during internal enquiry the bank had found 8 persons nominated in the complaint are involved in the scam as they have caused loss to the bank and damaged their reputation.

3. After usual investigation, challan was submitted against the accused under Sections 420/468/471/109/34 PPC. Trial Court issued NBWs against absconding accused Mohammad Zubair, who jumped the bail. NBWs were returned unexecuted. Therefore, above named accused was declared as Proclaimed Offender.

4. Trial Court framed charge against appellant and co-accused on 23.04.2015. Accused pleaded not guilty and claimed to be tried. After arrest of accused Kashif Johny amended charge was framed on 23.05.2016. Accused pleaded not guilty and claimed their trial.

5. At trial prosecution examined 04 witnesses, who produced relevant record/documents. Thereafter, prosecution side was closed by the learned DDPP vide his statement at Ex. 18.

6. Statement of accused was recorded under Section 342 Cr.P.C. Accused claimed false implication in this case and denied the prosecution allegations. Accused did not examine on oath in disproof of the prosecution allegations. No evidence was adduced in defence.

7. Trial Court after hearing the learned counsel for the parties and assessment of the evidence, by judgment dated 21.01.2017, convicted and sentenced the appellant as stated above and acquitted the co-accused. Hence, appellant has filed this appeal.

8. Mr. G.M.Bhutto, learned counsel for the appellant mainly contended that trial court has failed to pass the judgment as provided under Section 367(2) Cr.P.C. It is also argued that trial Court failed to determine the points for determination separately and reasons have also not been recorded. Learned Advocate for appellant further argued that under Section 367(2) Cr.P.C, trial Court was duty bond to specify the offences and sections of Pakistan Penal Code, but in this case trial Court has failed to specify the same and recorded conviction and sentence u/s 420/468/471 PPC jointly and fine was also imposed collectively under the above referred sections. It is contented that failure of the trial Court to pass the judgment in terms of Section 367(2) Cr.P.C is not curable under Section 537 Cr.P.C. In support of his contentions, he has referred the case of Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others reported as 2004 SCMR 1. Lastly, he prayed for setting aside the conviction and sentence awarded by the trial Court.

9. Mr. Ashfaq Rafiq Janjua, Assistant Attorney General conceded to legal contentions raised by learned advocate for appellant and argued that trial Court while passing judgment ignored mandatory provisions of Section 367(2) Cr.P.C. and submitted that case may be remanded to trial Court for re-writing the judgment in accordance with law.

10. After hearing the learned counsel for the parties, we have carefully perused the impugned judgment dated 21.01.2017 passed by the learned Judge, Special Court (Offences in Banks) Sindh at Karachi. At page no.4 of the judgment, learned trial Court has discussed and decided points Nos.1 & 2 together. Learned trial Court failed to specify the points for determination and no separate decision/reasons have been recorded with regard to the Sections 420/468/471 PPC for which the appellant was charged. Appellant on the conclusion of the trial has been convicted and sentenced as under:-

b) He shall be entitled to the benefit of section 382(B) Cr.P.C. All the sentences of each count shall run concurrently.

11. Sections 420, 468 and 471 of Pakistan Penal Code, 1860 which reads as under:-

420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable or being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

468. Forgery for purpose of cheating. Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

471. Using as genuine a forged document. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. .

12. Section 367 Cr.P.C. provides that judgment should contain point or points for determination, decision thereon and shall give reasons for decision. Section 367(2) Cr.P.C. provides that judgment should specify the offences and the sections of 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 21.01.2017 neither mentioned the separate Section of law under which the appellant was convicted nor reasons for convicting the appellant under Sections 420/468/471 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 learned trial Court. Ingredients to prove above offences are also entirely different. Failure of the learned trial Court to specify the points for determination and collective decision without reasons as required under Section 367(2) Cr.P.C. is an omission, which is not curable under Section 537 Cr.P.C. and absence of the decision on the said points separately and reasons in the judgment amounts to an illegality, which has caused prejudice to the case of accused. The Hon’ble Supreme Court in the case of Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCMR 01), has laid down 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.

13. For the above stated reasons, we have no hesitation to hold that trial Court over looked mandatory provisions of Section 367 Cr.P.C. Therefore, conviction and sentence recorded by the trial Court vide judgment dated 21.01.2017 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 Hon’ble Supreme Court in the case of Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad and others (2004 SCMR 01). Learned trial Court after hearing the learned counsel for the parties shall pass the judgment afresh within two months in accordance with law. Parties shall appear before trial Court on 01.11.2017.

Criminal appeal is partly allowed in above terms.

JUDGE