1988 P Cr (PLP)

No. of Supp- Lementary Amount shown in excess in Supplementary 1 415853 Rs.9,775 Exh.2/G 12-02-1980 13-2-1980 Exh.2/K Rs.9,775 2 416l82 Rs. 3,550 Exh.2/G-1 26-03-1980 26-3-1980 Exh.2/K-1 Rs. 3,550 3 416536 Rs.5,000 Exh.2/G-2 23-03-1980 24-3-1980 Exh.2/K-2 Rs.5,000 4 416540 Rs. 9,950 Exh.2/G-3 02-07-1980 8-7-1980 Exh.2/K-3 Rs. 9,950 5 0417896 Rs. 15,000 Exh.2/G-4 23-08-1980 24-8-1980 Exh.2/K-4 Rs. 15,000 6 417835 Rs. 30,000 Exh.2/G-5 26-08-1980 26-8-1980 Exh.2/K-5 Rs. 30,000 7 418564 Rs.50,000 Exh.2/G-6 13-10-1980 13-X-1980 Exh.2/K-6 Rs.10,0000 8 415567 Rs.50,000 Exh.2/G-7 04-11-1980 5-11-1980 Exh.2/K-10 Rs.50,000 9 418942 Rs.50,000 Exh.2/G-8 11-12-1980 11-12-1980 Exh.2/K-11 Rs.50,000 10 418945 Rs.50,000 Exh.2/G-9 28-12-1980 29-12-1980 Exh.2/K-12 Rs.50,000 11 946784 Rs.10,0000 Exh.2/G-10 29-12-1980 Rs.10,0000 Next there is against accused Haroon the written confession, Ex.2/C, dated 18-2-1985, which has been reproduced in extenso at pages 3 and 4 of this judgment. This confession according to P.W. Zaki Ahmad, Vice-President and Zonal Head, was made and written by accused Haroon in his presence and in the presence of four other officers, namely Manager Arif Rashid and Badruddin, Shahzaman Khan and Wazarat Khan, who had come to the Stock Exchange Branch on being informed of the fraud committed in the branch by accused Haroon. Out of them P.W. Arif Rashid has been examined and another officer of the branch, P.W. Syed Ahsan Hussain, both of whom have testified that the confession was made in their presence. As P.W. Syed Ahsan Hussain was the officer under whom accused Haroon was working he would reasonably be expected to be present. All of them have testified that accused Haroon had first voluntarily made an oral confession and then made the written confession after Manager Arif Rashid had detected the irregularities and discrepancies in the balance book in respect of the C.D. ledger. Both Zaki Ahmad and Arif Rashid have testified that accused Haroon made the confession voluntarily and strongly denied that accused Haroon was made to execute the confession on account of threats and promises. No question was put to either witness as to the nature of the threats or promises or the person from whom they emanated nor was any question suggested to P.W. Ahsan Hussain that accused Haroon made the confession on account of threats /promises. No evidence also has been led by accused Haroon on this point. In fact in his statement recorded under section 342, Cr. P. C., he has given a somewhat different reason for giving the confession. According to him he made the confession in the presence of the police. There is no evidence whatsoever on record to support this allegation. Not even a single question has been suggested by the accused or his learned counsel to any witness suggesting the ; presence of the police in the bank at the time of the making of the confession by accused Haroon. Moreover, even, in his reply to the charge-sheet served upon him, which was submitted some time after 6th May, 1985, when the case against him was challaned and was pending trial in the Court of the Anti-Corruption Judge, he has not alleged that Police was present at the time of the making by him of the confession though he has alleged that it was taken from him by force. In his confession, Ex.2/C, which has been written by accused Haroon in his own hand and signed by him, this accused has not only in clear and unambiguous words admitted having repeatedly drawn moneys from the bank by fraud but has also disclosed the mode in which the fraud was committed by him, which was to deposit in other accounts of his with different banks/branches cheques drawn on his account with the Stock Exchange Branch, and when these cheques were presented at the Stock Exchange branch for clearing, he used to destroy, the cheques and also used to credit/add in the supplementary, T.D. or clearing the very same amount and in this way the cash book used to be balanced and on the day when the ledgers used to be balanced, he used to short show in some account in the balance book the very amount that he had embezzled and drawn. The confession is corroborated on practically every material point by trustworthy and tangible evidence. These pieces of evidence are; (1) The admitted deposit at the Keamari Branch of H.B.L. by accused Haroon under the deposit slips Exs.2/G to 2/G-9 of 10 cheques drawn on his Account No.123-G with the Stock Exchange Branch of U.B.L., and under deposit slip Ex.2/G-10 of a cheque drawn on joint Account No-2218 of accused Munaf and Abdul Qader with the latter branch. (2) The fact that though the amounts of the above cheques were credited into Account No. 12922 with the Keamari Branch of H. B. L. the said amounts were not debited to Accounts No. 123-G and 2218 of the Stock Exchange Branch on which they were drawn. (3) The manipulation of the Supplementary sheets Exs.2/K to 2/K-12, the amount of excess dishonestly shown in the said Supplementary sheets exactly corresponding with the amounts of the 11 cheques deposited under the deposited slips Exs.2./G to 2/G-10. (4) The withdrawal by accused Haroon through the 55 cheques, Exs.12/A to 12/A-54, of the amounts from his Account Np.12922 with the Keamari Branch which were credited on the basis of deposit by him of the 11 cheques under the deposit slips Ex.2/G to 2/G-10. (5) The judicial confession of accused Haroon recorded by Magistrate Nazar Mohammad on 4-3-1985 which is in detail and runs to 11 handwritten pages. The Magistrate has been examined. He has testified that the accused was brought to him for the purpose of recording his confession at 10 a.m. by the F.I.A. Inspector, that he had his hand-cuffs removed and directed the F.I.A. Inspector to leave the premises, that he enquired from the accused whether he had been maltreated by the F.I.A. to which question he replied in the negative, that he explained to the accused that he was a Magistrate and had been brought to him for recording his confession but he was not bound to make a confession, whereupon the accused stated that he wanted to make confession and was doing so voluntarily, that he thereafter gave time for reflection to accused Haropn from 10-5 a.m. to 12.30, during which time he was made'' to sit in the Court-room near him and F .I . A . V had no access to him, that after the aforesaid period of reflection he again called upon the accused and after satisfying him that the accused had no marks of injury or violence on his person and that he was making the confession voluntarily, he recorded his confession, appended the required certificate to the confession and sent the accused to judicial custody; as assured by him to the accused before proceeding to record his confession. According to the Magistrate it took him about 1 hour and 45 minutes to record the confession. I have carefully considered the evidence of the learned Magistrate, who had sufficient experience of recording confession as he had recorded 40 to 50 confessions, and am satisfied that the learned Magistrate took all reasonable precautions to ensure that the confession was given voluntarily. In his confession accused Haroon has stated how he started on his career of defrauding the banks, which was when a friend of his, by name A . Karim, needed a sum of Rs.6, 000 to repay a loan of his deceased father and also to rent a house, and in order to help him, If though he did not have the money, he issued him a cheque for Rs.6,000 and when the cheque was received in the Stock Exchange Branch he destroyed the cheque and sent advice to the concerned branch though no debit entry of the amount was made in his account which in fact had no balance for encashment of the cheque. Accused Haroon has thereafter referred to the various accounts which he opened and through which he managed to defraud the bank of large amounts, part of which he used for his purposes, such as purchasing houses and flats, starting different businesses and renting and stocking shops and store rooms, etc. and part of the monyes so obtained by him he, gave to different persons (including the accused), whose names he has specified. Throughout the confession there appears to' run a strong current of exultation and sense of achievement and hardly any feeling of remorse or regret. This is a further circumstance which fortifies me in the view that the confession was made by accused Haroon voluntarily. The confession is not only voluntary but is, corroborated in material particulars by independent pieces of evidence., Apart from the oral and the written confession, Ex.2/C made by the accused to PWs Zaki Ahmad and Arif Rashid, and the circumstances (1) to (4) specified at page 18 of this judgment as corroborating the said confession, the judicial confession is corroborated by the following evidence: (i) In the statement (Ex.2/I) of his Account No.12922-1, which accused Haroon had opened with the Keamari Branch on 12-2-1983, the very first debit entry, which is dated 16-2-1980, is payment of Rs.6,000 on cheque No.201851. This amount was paid on the basis of the credit entry, through clearance, of Rs.9,775, dated 13-2-1980. It may be mentioned that this credit entry corresponds with the first deposit slip Ex.2/G, under which accused Haroon had deposited `for collection on 13-2-1980 in his Account No.12922-1 Cheque No. 415853 for Rs.9,775 drawn on his Account No.123-G with the Stock Exchange Branch. The cheque bearing No.415853 is from the cheque book issued to accused Haroon as appears from the statement of his account Ex.2/E for his Account No. 123-G, but though the amount of this cheque is not debited to his Account No. 123-G nevertheless credit for the amount of the cheque has been given in his Account No. 12922-1 with the Keamari Branch, as the cheque was not returned (having been destroyed by the accused as stated in his written confession Ex.2/C and judicial confession Ex.12/A.) Reference to this cheque for Rs.6,000 is made by accused Haroon in the opening part of his judicial confession and he has stated therein that he had given it to his friend A. Karim to repay the loan taken by the latter's deceased father. (ii) Accused Haroon in his judicial confession has referred to the various accounts which he opened or got opened in different names, including in the names of National Medical Store, Yousuf Nasir and Co., Rahmani Commission Shop and Yousuf Medical Store. Evidence regarding opening of these various accounts has been given by P.W. Arif Rashid and opening forms of these accounts have also been produced. (iii) In his confession accused Haroon has named several persons to whom he gave monyes (specifying the amounts that he gave them) or for whom he bought properties, vehicles or household articles. Some of those persons have been examined. P.W. Hanif Motan, who was employed as cashier in the Stock Exchange Branch, has testified that accused Haroon had given him loan of Rs.50,000 while P.W. Haji Ahmed has stated that he was given an amount of Rs.7,50,000 by accused Haroon for business purposes. These are the exact amounts which accused Haroon has stated in' his confession as having been given to them by him. Both the witnesses had produced these amounts before F.I.A. Inspector, Shahid Hussain, who had seized the same. A number of other persons named by accused Haroon in his confession to whom he had given various amounts had voluntarily produced those amounts before Inspector Shahid Hussain. Inspector Shahid Hussain has given the names of the persons who had Produced the amounts and also specified the amounts produced by them. The total amount recovered by inspector Shahid Hussain exceeds Rs. 18 lacs, including the amounts secured from Hanif Motan and Haji Ahmed. Inspector Shahid Hussain had also seized the car, scooters and motorcycles referred to by accused Haroon in his judicial confession. The rent agreement Ex.4/A in favour of Mst. Abida w/o accused Haroon in respect of the shop in which the latter had opened Yousuf Medical Store has been produced by P.W. Abdul Razak, whose wife, Mst. Rabia owns the shop. While the learned prosecutor strongly supported the prosecution case against the accused and painstakingly took me through the various pieces of evidence against the three accused, particularly those against accused Haroon, those which were restricted in their application to the instant case as well as those which were common to all the six cases against the accused, Mr. Liaquat Merchant and Mr. Anger, the learned counsel for accused Haroon vehemently assailed the evidence against accused Haroon, particularly the written confession and the judicial confession, and strongly contended that the prosecution had been unable to establish the guilt of accused Haroon and that a correct appreciation of the evidence would indicate that the officers of the bank were responsible for and involved in the defalcations committed. Mr. Liaquat Merchant submitted that the main evidence against accused Haroon is of Manager Arif Rashid and of Syed Ahsan Hussain, under whom Haroon was working, but their evidence should not be relied upon as there are material contradictions in their evidence as to the duties which were being performed by accused Haroon and further both of them were suspended and charge-sheeted by the Bank, indicating their involvement in the fraud. Now as to the duties of accused Haroon, it has been testified by P.W. Arif Rashid that though it is not the function of the Machine Operator to sign credit advices he can prepare them. It has similarly been stated by P.W. Ahsan Hussain that as C.D. incharge he was supposed to sign advices, which also required the signature of another officer, but because of the nice behaviour and co-operative attitude of accused Haroon, inspiring confidence, he used to write advices which he got signed from him. This witness, however, has further stated that it was the duty of the Machine Operator to prepare the daily supplementary sheets (which were thereafter signed by him), and to receive cheques from clearing department but he was required to check posting of cheques. Since P.W. Ahsan Hussain was the officer under whom accused Haroon was working he was in a better position than P.W. Arif Rashid to know what function exactly this accused was performing or had been assigned. Moreover, since the daily supplementaries were to be, prepared on the Machine, it is obvious that they were to be prepared by the Machine Operator though they were to be signed by the Officer-in-charge, who at the relevant time was P.W. Ahsan Hussain, who has admitted having signed the same. As to the involvement of P.Ws. Arif Rashid and Ahsan Hussain in the embezzlement, though they have admitted having been suspended and charge-sheeted by the bank, the charge against them was of negligence and lack of supervision and not of embezzlement of funds or fraud, as is clear from the charge-sheet, Ex.2/R, produced by P.W. Arif Rashid. The main thrust of the arguments of Mr. Liaquat Merchant was against the written confession, Ex. 2/C, and the judicial confession, Ex.11/A. As regards the written confession, Ex.2/C, the learned counsel contended that accused Haroon was made-to write the confession under duress, threats and promises. The three witnesses to the confession, namely P.Ws. Zaki Ahmed, Arif Rashid and Ahsan Hussain have, however, strongly denied that any threats were given or promises made to the accused and have asserted that he made the confession voluntarily after P.W. Arif Rashid had detected wrong totalling in the balance book entries of 31-1-1985. P.W. Zaki, though an officer of the bank, is an independent witness. There was no reason for him to falsely accuse Haroon or be a party to extraction of a confession from him by threats or promises. Nothing has been alleged against him. The only circumstances which Mr. Merchant could refer in support of his contention that the confession was extracted from accused Haroon by threats and promises, were the assertion made in the confession that no one else except he was responsible for the embezzlement of the fraud in the bank and the statement of the accused before the Court that he made the confession in the presence of the police. However, there is no evidence whatsoever to indicate that police was present at the time of the making of the confession. In fact no such question was put to any witness. As regards the assertion of the accused in the confession that no one else but he was responsible for the embezzlement, which according to Mr. Liaqat Merchant accused Haroon was made to make in order to absolve the other officers of the bank, it may be pointed out that accused Haroon was very likely referring to the persons whom he had induced to open accounts, either jointly with him or otherwise, and through which accounts the embezzlement and the fraud was committed. In any case this statement in the confession neither indicates that it was made in the presence of police, as stated in Court by hi accused Haroon, or that it was extracted from him by threats or promises. Mr. Liaqat Merchant assailed the judicial confession Ex.11-A, on the following grounds: (1) The confession was recorded after accused Haroon was in the custody of the F.I.A. from 18-2-1985 upto 4-3-1985, a period of over 13 days. (2) The confession refers to 58 transactions spread over a period of 5-6 years, and goes into intricate and minute details. It is impossible to believe that accused Haroon would have been able to give such a confession without having any notes or other papers. It was contended that looking to the length of the confession and the minute details contained in it, it was made on the basis of a paper given to the accused who merely read it out. (3) The letter which the F.I.A. Inspector had given to the Magistrate for recording the confession has not been brought on record. (4) The accused was brought in handcuffs, and even after his handcuffs were removed police was waiting outside, making the accused apprehensive. (5) Comparison of the judicial and the extra-judicial confession discloses that there are substantial contrad4ctions therein. (6) There does not appear to be corroboration of the judicial confession by independent evidence of the type required by Courts and law. (7) The judicial confession was retracted by accused Haroon as soon as it was possible for him to do so, as appears from his reply to the charge-sheet, Ex.3/L-1. In support of his above contentions, Mr. Liaquat Merchant relied upon the decisions reported as: (1) Indar Datt v. Emperor AIR 1931 Lah. 408 (2), Bhimappa v. Emperor A I R 1945 Bom. 484, (3) Sarwan Singh v. State of Punjab AIR 1957 SC 637, (4) Rahzan and another v. State P L D 1960 (W.P.) Lah. 24, (5) Hakim Gul v. The State P L D 1964 (W. P.) Peshland (6) 1985 M L D Kar.

604. In Indar Datt's case, it was held by a learned Single Judge of the Lahore High Court that where a Magistrate hands over the accused to the Investigating Officer who is in attendance outside his room, and records the confession of the accused after he has been with the police officer for a few minutes, the procedure is not a proper one and reduces to a considerable extent the value of the confession. This decision is not at all applicable in the instant case as the learned Magistrate recording the confession has testified on oath that he had, on accused Haroon being produced before him by the F.I.A. Inspector, directed the Inspector to leave the premises, that he had made the accused to sit near him in the court-room, that the police had no access to him during the period given to the accused for reflection, that at the time that he questioned the accused and recorded his confession no one else besides him was present and that after recording the confession he had remanded the accused to judicial custody. In Bhimappa's case, the accused who were sent to the Magistrate for recording of their confession remained in judicial custody for 21 to 52 days before their confession was recorded and no explanation was forthcoming why they had to remain in judicial custody for such long period before the recording of their confession. It was in view of these facts that a Division Bench of the Bombay' High Court held that the natural inference to be drawn is that the circumstances in which the confession was ultimately made were not such that any credence ought to be given to the confession as being of a voluntary character. The facts in the instant case are totally different and the above decision can have no application to it. In Sawaran Singh's case A I R 1957 SC 637 the Supreme Court of India has observed that 'it would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to a person in any given case (before recording his confession). However, speaking generally, it would; we think be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded'. These observations possibly were made on the facts of that case. It was found that the accused was given only half an hour time for reflection before his statement was recorded. Moreover, the police Sub-Inspector who had taken the accused was apparently standing in the Verandah outside in the Magistrate's Office, and soon after the statement was finished the Sub-Inspector went to the Magistrate's room again. Furthermore, though the person of the accused showed some injuries, yet the learned Magistrate did not enquire how the accused came to the injured. Finally, it also appeared that some material points mentioned .in the confessional statement were not shown to be true. None of these special circumstances are present in the case. Moreover, our Courts have not laid down or even suggested such a period for reflection to be given to the accused before recording his confession. In Gul Jamal v. The State 1980 S C M R 654, the Supreme Court of Pakistan, while repelling the contention that the confession was involuntary, as sufficient time was not given for reflection, observed: as follows: - "There is no hard and fast rule to prescribe the time for reflection. It is true that by way, of abundant caution, the Courts have held that sufficient time should be given for reflection but that cannot be pressed into service as an invariable practice. It is from the facts of each case that an inference should be drawn as to whether the time given was sufficient for reflection. In the present case almost all the incriminating pieces of evidence were collected before the 4th of February, 1975, a day after the arrest of the accused; and as the accused were ready, and willing to confess, their confessions were accordingly recorded on the 4th of February, 1975. In this connection the time given for reflection cannot be regarded as insufficient. In the instant case time of reflection was given from 10-05 a.m. to 12-30 p.m. In Rahzan v. The State P L D 1960 (W.P.) Lah. 24 a Division Bench of the erstwhile High Court of West Pakistan observed: 'And once a Court finds that a confession is voluntary, conviction can be based on the same, provided it is true. However, as a rule of caution and prudence now firmly established, Courts have refused to record conviction on a retracted confession alone and have insisted on independent support of it by corroborative evidence on material particulars connecting the accused with the offence'. Similarly, it was held by a Division Bench at Peshawar in Hakim Gul v. State PLD 1964 (W.P.) Peshawar; (a) That failure on the part of the Magistrate to inform the accused that he would not be sent back to police custody but to judicial lock-up makes the voluntariness of the confession doubtful, and (b) that a retracted confession by itself is not sufficient for conviction unless corroborated by material evidence. In the instant case, there is considerable independent evidence, which has been discussed in detail, to corroborate the judicial confession. Moreover, as observed by the Supreme Court of India in Sarwan Singh v. State P L D 1957 SC (Ind.) 555 At p. 564, what amount of corroboration would be necessary in a case would always be a question of fact to be determined in the light of circumstances of each 'ease. As regards the point whether the Magistrate had intimated accused Haroon that he was a Magistrate, P.W. Nazar Muhammad has stated on oath that he had so informed the accused. This is also recorded in the confession itself. On the point whether accused Haroon made the confession voluntarily or whether it was the result of coercion, threats or promises, I may refer to the observation of the Supreme Court of India in Hemari Devi Lal v . State of Ajmer to the effect that it must be affirmatively proved that such confession was free and voluntary and that it was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed. It however cautioned that the mere bald assertion by the prisoner that he was threatened or tutored or that inducement was offered to him, cannot be accepted as true without more evidence. In the instant case also there is not a particle of evidence in support of accused Haroon's allegation that he made the judicial confession due to police pressure. In Tauqir Alam and others v. State 1985 M L D 604, the judicial confessions of the accused, which were recorded on the 4th day of their arrest, were considered vitiated and devoid of evidentiary value. But the interval of four days between their arrest and recording of their confessions was only one (and that too not the main) out of the several/factors on the basis of which the confessions were held to be devoid of evidentiary value. The High Court held in that case: (1) that there was sufficient material available to show that the accused persons were maltreated and subjected to Aolence; (2) that the Magistrate after recording the confession handed them back to the same police which had brought them; (3) that the judicial confession showed that ail recoveries were made before the recording of the confession; and (4) that instead of there being independent evidence to corroborate the confessions such evidence was in fact inconsistent with the confessions, particularly in regard to committing rape on the victim. In this case, the factors which weigh...heavily with the High Court in rejecting the confessions are totally absent. As regards the contention of Mr. Liaquat Merchant that since there was an interval of some 13 days between the arrest of accused Haroon and the recording of his judicial confession, it stands vitiated, I may point out that this accused had made a confession in his own hand on 18-2-1985 even before the lodging of the complaint against him. Moreover, the mere fact of the accused having been in police custody for some time before his confession was recorded does not itself make the confession inadmissible or devoid of evidentiary value. In Syed Sharifuddin Pirzada v. Sohbat Khan P L D 1972 SC (?) where the confession of the accused was recorded 13 days after his arrest, during which he was in police custody, it was observed by the Supreme Court of Pakistan that 'the fact that Solibat Khan was for some time in police custody does not lead to the conclU ion that he was tortured. Remaining of accused persons for some time in the police custody does not affect their judicial confessions'. The upshot of the above discussion is that I hold (i) that the prostitution have failed to establish b64ond~reasonable doubt their case against accused Abdul Qader and Munaf; and giving them the benefit of this doubt; I would acquit these two accused of the charges framed against them; (11) that accused Haroon by practising deception and fraud on, U. B. L. (Stock Exchange Branch) dishonestly managed to receive from the said Branch, through the Keamari Branch of H. B. L., a total amount of Rs.3,73,275 and further falsified the supplementaries of the Stock Exchange Branch, Ex.2/K to 2/K-12, in order to cover up his fraud and has thereby committed offences punishable under section 420 and 477-A, P.P.C. I Would accordingly sentence accused Haroon for the offence under section 420, P.P.C. to rigorous imprisonment for five, years and also to pay a fine of rupees eight lacs or in default of payment of the fine to suffer further R.I. for one year, and further sentence him for the offence under section 477-A, P.P.C, to rigorous imprisonment for five years. That two substantive sentences will run concurrently while the sentence in default of payment of fine will run consecutively. Accused Haroon has also been sentenced today, in Case No. 9/E of 1985 to R.I. for seven years under section 420 and a similar sentence has been imposed on him for the offence under section 477-A, P.P.C. The substantive sentences of imprisonment awarded in this case will also run, concurrently with the substantive sentences of imprisonment awarded to accused Haroon in that case. As accused Haroon has Continuously remained in custody from 18-21985 uptil today i.e. a period of almost 29 months, in computing the period of his substantive sentence of imprisonment, the period for which he has remained in custody shall be excluded, as provided in section 382-B. Cr.P.C. Before closing this judgment I would like to commend the diligent, thorough and efficient investigation conducted in this case and the connected cases by F.I.A. Inspector Shahid Hussain and his ability in securing a substantial portion of the monyes embezzled as well as other properties stated to have been purchased from the embezzled funds. I would also like to place on record the able assistance that I have received both from the learned prosecutor as well as the learned counsel for the defence in deciding this difficult case, which involved intricate points of fact and law. I particularly appreciate their willing assistance in the fairly quick disposal of this and the connected case. S.A./15/Sp.B. Accused convicted.