2012 PLP 430 (YLR)

WAQAR AHMAD SETH, J.

The appellant stood trial in Reference No.16 of 2006 and at the conclusion after having been found guilty was convicted and sentenced to 7 years with a fine of Rs.41,23,131.45 recoverable as an arrear of land revenue, however, benefit of section 382-B, Cr.P.C. was extended to him vide judgment dated 30th October, 2010 of learned Judge, Accountability Court-III, Peshawar.

2. The allegation against the appellant is that on 21-6-2001 Naseeruddin, Manager National Bank of Pakistan Main Branch, Peshawar made a report to the Crime Wing of FIA about the embezzlement in the Foreign Exchange Section, hence F.I.R. No.23 dated 6-11-2001 was registered against the accused in P.S. FIA CBC Peshawar, however, on the merger of Anti-Corruption Operation and Economic Crime Wing into the NAB, the inquiry/investigation was conducted by the NAB. During the investigation, it was revealed that at the time of closing their Foreign Exchange Transaction Accounts, the account-holders surrendered their cheque books, which were supposed to be destroyed but the appellant in connivance with his co-accused used it for the purpose of misappropriation of Foreign Currency Accounts through fraudulent withdrawals. It is further alleged that the accused fraudulently prepared thirteen FET in the name of co-accused Sheraz Malik and later on encashed the amount i.e. Rs.41,85,784.70. After collection of evidence, the I.O. submitted his report to the Director General, NAB, which resulted into filing of the instant Reference.

3. On filing of the Reference, the accused were put on notice. Since co-accused Sheraz Malik had absconded, therefore, proceedings under section 512, Cr.P.C. were initiated against him. The other accused, namely, Liaqat Ali died during the trial, therefore, proceedings against him were abated. On indictment, the appellant did not plead guilty to the charge and claimed trial.

4. At the trial, the prosecution produced 16 witnesses in all. On close of prosecution evidence, the appellant was examined under section 342, Cr.P.C., wherein, he denied the charge, professed innocence and stated false implication, however, he wished to produce no defence nor examined himself on oath as required under section 340(2), Cr.P.C, thus, the trial culminated in conviction and sentence of the appellant as stated above, hence necessitated the filing of instant appeal. The gist of prosecution evidence is as under:-

5. Muhammad Tahir OG-I NBP appeared as P.W.1, who produced the original account opening Form bearing No.40896 in the name of co-accused Sheraz Malik. The relevant account is in the name of Sheraz Malik, which is available on record as Exh.P.W.1/1.

6. Moin-ud-Din VP NBP Regional Office, Abbottabad appeared as P.W.2., who conducted inquiry against dead accused Liaqat Ali, which fact has been admitted by him in cross-examination as such he has no concern with the appellant.

7. Aziz Ahmad Assistant Director FIA appeared as P.W.3., who registered the case vide Crime No.7 of 2001 dated 10-3-2001 and 23 of 2001 dated 6-11-2001, respectively, which is Exh.P.W.3/2 and Exh.P.W.3/3.

8. Yousaf Khan, VP NBP Regional Office Peshawar, who appeared as P.W.4., who deposed regarding the affidavits sworn by the appellant, wherein, he admitted his guilt, which is Exh.P.W.4/1 and Exh.P.W.4/2.

9. Azhar Ali, Manager NBP GT Road Branch, Peshawar appeared as P.W.5., who stated that during the relevant period he was posted as Relationship Manager/Credit Head in NBP Peshawar Cantt. Branch. He handed over 58 number of documents to the I.O. NAB (F), which is Exh.P.W.5/1.

10. P.W.6. is Taj Muhammad Stenographer NAB(F), who stated that vide recovery memos, the I.O. took into possession the original documents mentioned therein, which correctly bears his signature.

11. P.W.7. is Imtiaz Tahir, who was posted as Cashier in National Bank of Pakistan Peshawar Cantt. in the year, 1971, who received a Cheque bearing No.110215651 dated 17-12-1999 amounting to Rs.85,000 containing A/C No.040896-2. The bearer identified himself as Sheraz Malik and he obtained his signatures on the reverse side of the cheque and made payment to him. The said cheque is Exh.P.W.5/2.

12. P.W.8. is Haji Mukhtar Ahmad Ex-OG-III, NBP Main Branch Peshawar Cantt., who was Cashier in the Bank with effect from 1997 to 2000/2001. He deposed that the appellant was Incharge of Foreign Exchange Section while dead co-accused Liaqat Ali was subordinate to him. He further states that absconding accused Sheraz Malik was foreign currency account holder in the bank. He made payment against Cheques No.215657 dated 24-7-1998 for Rs.1696 and 215659 dated 3-8-1998 for Rs.5,000 to appellant. The said cheques are Exh.P.W.5/2 and Exh.P.W.8/1.

13. P.W.9. is Mehmood Jan Ex-Cash Officer, NBP Peshawar Cantt. Branch, who remained posted at Senior Cashier in NBP Peshawar Cantt. from 1996 to 2001. He made payments to appellant through different cheques on different occasions.

14. P.W. 10 is Qasam Khan Rtd. OG-III, NBP Main Branch Peshawar Cantt., who was Cashier in NBP Peshawar Cantt. from January, 1998 to January, 1999 and he made payments to appellant through different cheques on different occasions, details of which are given in his statement.

15. P.W.11. is Mustajab Ahmad OG-II NBP Risalpur Branch, Nowshera, who remained Cashier in NBP Peshawar Cantt. from 1999 to 2000 and made payments to appellant through different cheques, fully detailed in his statement.

16. P.W.12. is Zahoor-ul-Islam Ex-OG-III, NBP Peshawar Cantt. Branch, who stated that he seen Cheque No.FC 109207 dated 18-11-2000 for US dollars seven thousands, which was passed by appellant and his co-accused Liaqat Ali and the payment was made to appellant by him. Similarly, the payment of Cheque No.FCD 076443 dated 18-12-2000 amounting US dollars five thousands passed by the aforementioned accused was made to appellant. The said cheques are Exh.P.W.12/1 to Exh.P.W.12/3.

17. P.W.13. is Zahoor Ahmad, Ex-Officer Grade-III, NBP Main Branch Peshawar Cantt. who made payments to appellant and his brother-in-law, namely, Sheraz Malik through different cheques on different occasions, fully detailed in his statement.

18. P.W.14. is Shaukat Ali, AD FIA Technical Wing, Islamabad, who received a letter dated 27-3-2006 from Group Captain Muhammad in Reference investigation against the accused. The matter was marked to him by the then Director Technical for examination and in compliance thereof he submitted his report on 10-4-2004, which is Exh.P.W.14/1.

19. P.W.15. is Naseeruddin VP NBP Regional Chief NBP, Regional Office, Mardan, who is complainant of the case. He deposed that he detected the fraud, which was reported to Commercial Bank Cell of FIA through letter Exh.P.W.3/1.

20. P.W.16. is Ziaullah Khan, Deputy Director/I.O. NAB (P), who investigated the case vide letter Exh.P.W.16/2.

21. Learned counsel for appellant contended that the prosecution has failed to bring home the charge against the appellant through cogent and reliable witnesses; that the witnesses produced by prosecution were inconsistent with each other rather contradicted on crucial points benefit whereof must go the appellant; that two accused have been charged in the case and same evidence has been recorded but accused Liaqat Ali has been acquitted and only the appellant has been made a scapegoat by convicting and sentencing as mentioned above, which finding is not supported from record; that the witnesses produced by prosecution were interested and were pressurized, thus, they deposed against the appellant favouring the prosecution, hence their testimony was wrongly relied upon by learned trial court; that the charge against the appellant has not been established through evidence but the learned trial court while giving the benefit of doubt to co-accused wrongly and illegally convicted and sentenced the appellant for no valid reason, thus, the evidence recorded and conclusion drawn merits reversal.

22. As against that learned counsel for complainant bank/respondent No.3 contended that the appellant while misusing his official position has misused the cheque books pertaining to the closed accounts, which were deposited by the account holders with the bank after closure of their accounts and accused debited different sums at different times to the closed accounts and withdrew the same through cheques from the pro forma accounts created by the bank for the purpose of payment to the foreign currency account-holders against the foreign currency amount in Pakistani rupees; that the prosecution in support of its allegations produced oral as well as documentary evidence, which was rightly relied upon by learned trial court; that the witnesses produced by prosecution were subjected to lengthy and taxing cross-examination but nothing favourable to the appellant could come out from their mouth; that the reasons advanced by learned trial court in the impugned judgment are based on documentary as well as oral evidence, to which no exception could be taken.

23. Mr.Lajbar Khan, Advocate Senior Prosecutor NAB adopted the same arguments put forth by learned counsel for complainant/respondent No.3.

24. The allegation against the appellant is that while posted as Incharge of Foreign Exchange Section in National Bank of Pakistan, Peshawar Cantt. Branch he has committed embezzlement of Rs.41,85,784.70 from 1997 to 2002 with the inclusion of co-accused Liaqat Ali, who was subordinate to him at the relevant time and was subsequently acquitted. It is further alleged that the accused misused the cheque books pertaining to the closed accounts, which were deposited by account holders with the bank after closure of their accounts and the accused debited different sums at different times to the closed accounts and withdrew the same through cheques from the pro forma.

25. The prosecution in order to substantiate its case produced sixteen witnesses in all. They were subject to lengthy cross-examination but nothing favourable to the appellant could come out from their mouth. They were consistent on each and every aspect of the matter and did not contradict each other on material issues. All the witnesses deposed in clear words that foreign exchange department, where the alleged embezzlement took place, was headed by the appellant and has passed the disputed cheques, hence he was solely responsible for the crime. The relevant documents were in custody of Incharge of Foreign Exchange Department, which was headed by appellant. As per record, the appellant had opened an account in the name of his brother-in-law, namely, Sheraz Malik through which he used to deposit foreign currency of different amount instead of paying to the customers received by the head office Karachi and then this amount was used to be credited to the account of Sheraz Malik and then the appellant withdrew the embezzled amount through cheques. No cross-question has been put on behalf of appellant to negate such version. Moreover, P.W.15 has fully described and highlighted the modus operandi of the appellant, which was not shattered or even touched by the learned defence counsel. It also merits mention here that the Handwriting Expert report is positive.

26. The record is also suggestive of the fact that certain account holders of foreign currency deposited cheque books with the appellant being Incharge Foreign Exchange Department having closed their accounts but instead of destroying these cheque books, he used the same for embezzlement of the disputed amount.

27. The learned trial court after scrutinizing the material available on record acquitted the co-accused of the charge levelled against him while extending the benefit of doubt and convicted and sentenced the appellant on the ground that the appellant was Incharge of Foreign Exchange Department at the relevant period and he was solely responsible for the embezzlement took place.

28. Learned counsel for appellant argued the case at considerable length but could not succeed in showing any loopholes in the prosecution evidence. The impugned judgment of learned trial court is in accordance with law and material available on record and that too when the same suffers from no illegality. From the combined study of material available on record, it is held that the learned trial court has rightly convicted and sentenced the appellant, hence instant appeal being without any substance is dismissed hereby. H.B.T./385/P Appeal dismissed.