2022 PLP 178 (YLRN)

IRSHAD ALI SHAH, J.

The appellants by way of filing two separate appeals have impugned judgment dated 19.09.2018, passed by learned Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi, whereby they have been convicted and sentenced as under; "a) Accused Syed Kamran Ali son of Syed Shakeel Ahmed is convicted under section 420, P.P.C. and sentenced to suffer 07 years R.I. and fine of Rs.24.7 millions. In case of non-payment of fine shall suffer further S.I. for 02 years. b) He is convicted under section 471, P.P.C. and sentenced to suffer 07 years R.I. and fine of Rs.1 lac. In case of non-payment of fine he shall suffer further S.I. for 06 months. c) Accused Shahbaz Chughtai son of Mazhar Iqbal is convicted under section 420, P.P.C. read with section 109/34, P.P.C. and sentenced to suffer 07 years R.I. and fine of Rs.24.7 millions. In case of non-payment of fine he shall suffer further S.I. for 02 years. d) He is convicted under section 471, P.P.C. read with section 109/34, P.P.C. and sentenced to suffer 07 years R.I. and fine of Rs.1 lac. In case of non-payment of fine he shall suffer further S.I. for 06 months.

2. The facts in brief necessary for disposal of the captioned appeals are that on enquiry, it transpired that appellant Syed Kamran Ali being Senior Executive Legal of M.S. Bakri Trading Company Pakistan Pvt. Limited with connivance of appellant Shahbaz Chughtai planned to siphon off amount from OOTCL account (sister concern of Messrs Bakri Trading Company) maintained with Standard Chartered Bank, thereby managed three blank cheques in July/August, 2015 and then together with appellant Shahbaz Chughtai visited Lahore, contracted three local free lanes agents pretending that Chief Executive Officer of OOTCL intends to purchase property at Lahore. The said agent showed them some property and then both of the appellants prepared the cheques with forged signatures of the authorized signatories of OOTCL account and then handed over those cheques to above said Estate Agents as a token money. Upon deposit of said cheques by the above said Estate Agent in their respective accounts, the Standard Chartered Bank cleared the same. Subsequently, both of the appellants got back the said amount through different modes under the pretext that the Chief Executive Officer of OOTCL has postponed the program to purchase the property at Lahore. In that way they committed fraud/cheating/misappropriation of Rs. 24.7 Millions for that they were booked and reported upon one after other.

3. The appellants did not plead guilty to the charge and prosecution to prove it, examined in all 19 witnesses including complainant Tanveer Ahmed Khan and then closed the side.

4. The appellants in their statements recorded under section 342, Cr.P.C., denied the prosecution allegation by pleading innocence, they examined none in their defense or themselves on oath to disprove the prosecution allegation against them.

5. On evaluation of evidence, so produced by the prosecution, learned trial Court convicted and sentenced the appellants by way of impugned Judgment as is stated above.

6. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of complainant; the alleged fraud was without involvement of the Bank and its officials, therefore, the learned trial Judge ought not to have taken the cognizance of the offence being Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi and the very trial is violative of section 353, Cr.P.C. By contending so, they sought for acquittal of the appellants and alternatively prayed for remand of the case to the learned trial Court for fresh trial in accordance with law.

7. Learned Assistant Attorney, General and learned counsel for the complainant have sought for dismissal of the appeals by contending that neither the appellants are innocent nor have been involved in this case falsely; they have committed the offence by involving the Bank, therefore, learned trial Court has taken the cognizance of the offence rightly and the trial was not defective at least to extent of appellant Shahbaz Chughtai.

8. We have considered the above arguments and perused the record.

9. Admittedly, in first instance appellant Shahbaz Chughtai was charged for the alleged offence and the case proceeded against him to large extent. Subsequently, on arrest appellant Syed Kamran Ali was produced before learned trial Court and the charge framed already was amended and the witnesses already examined were recalled with opportunity to appellant Syed Kamran Ali to subject them to cross-examination. Such exercise is alleged by the learned counsel for the appellants to be violative of section 353, Cr.P.C.

10. Section 227 Cr.P.C. provides that Court may alter, add or amend the charge at any time before judgment is pronounced. If it is amended, then as per requirement of section 231, Cr.P.C. the witnesses already been examined are to be re-called and re-examined for the purpose of examination on point of alteration, addition or amendment so is made in the charge. In the instant case, no doubt the witnesses so examined by the prosecution were re-called but only for the purpose of cross-examination to be made by appellant Syed Kamran Ali. Such exercise could hardly be said to be legal in terms of section 353, Cr.P.C, which prescribes that every evidence is to be taken in presence of accused. Obviously, none of the witness so re-called for purpose of cross-examination was subjected to examination-in-chief in presence of appellant Syed Kamran Ali. Such omission obviously has prejudiced appellant Syed Kamran Ali in his defence seriously, which is against the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which prescribes chance of fair trial and due process to every citizen for determination of his civil rights and criminal charges. In case of Zahid Karim and others v. The State and others (2005 PCr.LJ 998), it has been held by Honourable Lahore High Court that; "Ss.353 & 537

Trial held in absence of accused at a place other than the notified place

Validity

Trial Court had recorded the statements of five prosecution witnesses in the absence of accused and at a place other than the notified place of the trial. i.e.. Central Jail, in violation of the mandatory provisions of section 353, Cr.P.C.

Such contravention of the provisions of section 353, Cr.P.C. could not be termed as an error, omission or irregularity so as to be curable under section 537, Cr.P.C., as it was nothing but a downright illegality vitiating the relevant proceedings of the trial of accused

Convictions and sentences of accused were set aside in circumstances and the case was remanded to the Trial Court for recording the statements of the said five prosecution witnesses afresh within the premises of the relevant jail in the presence of accused and then to decide the case afresh in accordance with law."

11. In view of above, the impugned judgment is set aside with direction to learned trial Court to proceed with the case afresh and conclude the trial expeditiously preferably within three months hereinafter, from the stage of illegality as is pointed out above by providing chance of fair trial and hearing to all the concerned.

12. The above captioned appeals are disposed of in above terms. SA/K-35/Sindh Case remanded.