2025 PLP 2153 (YLR)

Sadiq Ali, J.

Through the appeal in hand filed under Section 410 Cr.P.C appellant (Gulraiz son of Manzoor Hussain Shah) has called in question the impugned judgment dated 12.09.2024 delivered by learned Presiding Officer, Special Court (Offences in Banks) Khyber Pakhtunkhwa Peshawar in case FIR No. 32/2019 dated 13.05.2019 registered under Sections 409 / 468 / 471 / 109 P.P.C at Police Station FIA ACC Abbottabad, whereby he has been convicted and sentenced as under: - "Under Section 420 P.P.C read with Section 109 P.P.C to simple imprisonment for four (04) years with a fine of Rs.20,000/- or in default to suffer further one month S.I. Under Section 468 P.P.C read with Section 109 P.P.C to simple imprisonment for four (04) years with a fine of Rs.20,000/- or in default to suffer further one month S.I. Under Section 471 P.P.C read with Section 109 P.P.C to simple imprisonment for one year with a fine of Rs.10,000/- or in default to suffer further one month S.I. All the sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C. "

2. On 03.10.2018 complainant of the case namely, Muhammad Bilal Khan, Branch Manager MCB Bank Jhangi Branch Abbottabad (PW-01) submitted a written application (Ex.PW-2/1) before Deputy Director FIA Abbottabad with averments that he had been performing his duties as Branch Manager MCB Jhangi Branch and an amount of Rs.3,65,000/- had been statedly transferred from the account holder Qazi Muhammad Irshad (058702010003842) via cheque No. 623956156 to the account of accused-appellant Gulraiz bearing No. 00913241981004840 while another cheque of Qazi Muhammad Irshad bearing No. 1623956158 had also been allegedly encashed from the bank counter by co-accused Muhammad Yaseen on the same day. According to contents of application, as the account holder Qazi Muhammad Irshad had informed the branch that both the original cheques were lying with him, however, through fraud and forgery someone had transferred the amount from his account and withdrawn the cash amount, hence, upon checking of record it transpired that both the cheques had been used by co-accused Muhammad Yaseen. On the basis of ibid complaint, the FIA authority had initiated enquiry, wherein it was found that co-accused Muhammad Yaseen in connivance with the appellant had statedly committed fraud with the bank and willfully and intentionally withdrawn an amount of Rs.1,050,000/- from the bank account of Qazi Muhammad Irshad through fake / bogus cheques, hence, the FIR (Ex.PA) was registered against them on 18.04.2018 under Sections 409 / 468 / 471 / 109 P.P.C.

4. Upon conclusion of investigation, challan was submitted before the learned trial court. Formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution produced twelve (12) witnesses, whereafter accused was examined under Section 342 Cr.P.C, wherein he denied the allegations and professed innocence, however, he neither opted to be examined on oath nor produced evidence in his defence. At the conclusion of trial, the learned Presiding Officer convicted and sentenced the appellant vide impugned judgment as mentioned above. Aggrieved from judgment of learned trial court, the appellant has filed the instant appeal.

5. We have heard arguments of learned counsel for the parties and gone through the record with their valuable assistance.

6. Perusal of record reveals that appellant alleged to have committed fraud with the bank by willfully and intentionally withdrawing an amount of Rs.1,05,00,000/- from the bank account of one Qazi Muhammad Irshad by using his forged and fake cheque books, however, intriguing aspect of the matter is that neither in the application addressed to Deputy Director FIA Abbottabad nor in his statement the complainant (PW-01) had mentioned that it was the appellant who had committed fraud with the bank by using forged and bogus cheque books rather in both these documents the complainant stated that co-accused (Muhammad Yaseen) had encashed one cheque bearing No. 1623956158 amounting to Rs.6,40,000/- and transferred an amount of Rs.3,65,000/- through second cheque bearing No. 1623956156 in the account of appellant. If for the sake of arguments, we admitted that be that as it may that the amount may have been transferred in the account of appellant but the prosecution has failed to bring on record any iota of evidence showing that he was in active connivance with the co-accused, who had withdrawn the cash amount from the bank and transferred some of the amount in the account of appellant. Not only the complainant has failed even to name the appellant that he has committed the offence but even Adeel Afsar, General Banking Officer, while appearing in the witness box as PW-02 also never ever named the appellant to have committed the offence. This witness only stated in his statement that his responsibility was to perform the duty of cheque transfer from one account to another and its posting and when the cheque in question bearing No. 623956156 was presented to him, he transferred the amount of Rs.3,65,000/- in the account of appellant. Similarly, Muhammad Khalid, Cashier while appearing in the witness box deposed that as he was given the responsibility to verify and complete all procedure of cheques before encashment, therefore, when co-accused (Muhammad Yaseen) had presented cheque bearing No. 1623956158 (Ex.PW-3/1) amounting to Rs. 6,40,000/- to him on 14.07.2017, he adopted the security procedure including UV (Ultra Violet) Lamp and BIV (Banking Instrument Verification) marker and after finding it correct sent the same to Haripur Branch of its call back confirmation (CBC) and after confirmation of all the procedure declared the cheque to be genuine, thus, delivered cash to absconding co-accused. He also admitted that similarly after completion of all the abovementioned procedure he had transferred the amount mentioned in the second cheque (Ex.PW-3/2) into account No. 0913241951004840.(sic)

7. Like other witnesses, Syed Ali Shah, Cashier while appearing in the witness box as PW-04(sic) also stated that his limit for encashment was Rs.25,000/- and on the relevant date the cheque in question was presented to him by absconding co-accused (Muhammad Yaseen), however, as the amount mentioned in the cheque was exceeding the limit, therefore, the process was completed by PW-03 (Muhammad Khalid). He further deposed that the cheque holder had account in Haripur Branch of MCB, therefore, the said cheque was sent to Haripur for its CBC process and after due verification by PW-03 and PW-01 he had handed over the amount to absconding co-accused.

8. Waqas Mehmood, Operational Manager MCB Haripur while appearing in the witness box as PW-05 also stated that a person by the name Muhammad Yaseen had presented two cheques which were in the name of Muhammad Irshad and presented in the MCB Jhangi Branch. He stated to have entrusted the cheques to Javed Iqbal OG-I tariff services supervisor, who verified the signature of these cheques but could not confirm CBC (Call Back Customer) due to non-availability of the mobile number of the customer, however, after 15 minutes he had confirmed CBC and informed Jhangi Branch through e-mail. Javed Iqbal, OG-I while appearing in the witness box deposed that on 14.07.2017 he had received an email in his branch from Jhangi Branch, thus, checked the account number of the person regarding whom the e-mail was sent and found him to be Qazi Irshad. He further deposed that he could not find cell phone number of Qazi Irshad, thus, returned the e-mail by mentioning the factum that cell phone number of the account holder was missing and also replied to the e-mail, noting that CBC not confirmed, however, after a while, a cell phone call was received on the Branch's PTCL phone and the caller had statedly introduced himself as Qazi Irshad by telling that he was in need of money for purchase of a car, thereafter he confirmed the CBC.

9. Leaving aside the ibid aspect of the matter, suffice it to say that significant evidence in the was statement of Qazi Muhammad Irshad, from whom account the amount had statedly been withdrawn. He while appearing in the witness box as PW-11 stated that when he inquired from the bank, rupees one million was found missing from his account, thus, he made a complaint to the bank, however, the bank returned his amount along with interest on it. When asked he has shown his ignorance about the appellant or his absconding co-accused. At the tail end he stated that he did not want to charge anyone for the offences in the case.

10. Keeping in view the charge of breach of trust as well as committing forgery for the purpose of cheating and using a forged document as genuine against the appellant coupled with the role attributed to him, the essential ingredients of the offences were found missing in the case as neither the appellant was found to have committed breach of trust or forgery / cheating or using a forged document as genuine nor he had taken benefit of such cheques himself but as per evidence adduced at the trial the active role of using the cheques in question and taking benefit thereof had been attributed to absconding co-accused. In this respect guidance may be taken from the judgment delivered by learned Sindh High Court, Sindh in the case of "Bashir Dawood and 02 others v. Tanveer Ahmad and another" reported as 2020 PCr.LJ 1230 wherein it was held as under: - "For constituting an offence of cheating and breach of trust the fraudulent and dishonest mens rea/intention and inducement at the time of performing the act are essential ingredients. In this respect the onus lies on the prosecution to prima facie establish the aforesaid ingredients for taking cognizance in the matter. Mere denial of transaction and refusal to pay the money does not necessarily show criminal intention from very beginning. The accused cannot be convicted merely on presumptions." Further reliance in this respect may also be placed on the judgment delivered in the case of "Syed Fayyaz Hussain Zaidi, Advocate v. SHO Police Station Chehliyak Multan and another" reported as 2004 MLD 1403, where it has been held as under: - "After deletion of the offences under sections 467, 468/471, P.P.C. it is established that there is no case of false, forged and fabricated document. To appreciate the commission of the offence under section 420, P.P.C. it would be useful to reproduce the definition of cheating as laid in case under section 415, P.P.C:-- Section 415.- Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property, to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, arid which, act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat."

9. The ibid section has two par. The first part is that a person may be induced to deliver any property to any person or to consent that any person shall retain any property. The second part of the section covers the class of acts of doing or omitting to do anything which the deceived would not do or omit to do if he was not so deceived. In the first part of the section the delivery of property with fraudulent and dishonest inducement is the essential ingredient to constitute an offence whereas in the second class of cases, the inducement must be intentional and it is settled proposition of law that the offence of cheating is not constituted if no deception was practiced and sustained pecuniary loss. In this context reference can be made to case of "Muhammad Nasim Khan and another v. Fida Muhammad Khan and another" (1993 PCr.LJ 1795). Reliance is also placed on the judgments delivered in the case of "Abdul Rasheed Nasir and others v. The State" reported as 2009 SCMR 517 and in the case of "Syed Hamid Saeed Kazmi and others v. The State" reported as 2017 PCr.LJ 854.

11. Although the prosecution has levelled serious allegations against the appellant that he had withdrawn huge amount from the account of Qazi Irshad, however, interestingly when said Qazi Irshad appeared before the court he stated to have neither known the appellant nor charged him for any offence. Besides, the record available on the file is totally silent about the fact that how and whom prepared the disputed cheques and in how manner the same was used for the purpose of cheating in order to constitute offence under Section 468 / 471 P.P.C. There must be evidence on the file that how the forged document was prepared and in what manner it was used for the purpose of cheating. All the ingredients of the ibid provisions of law are totally missing here in the instant case and the learned trial court has not taken into consideration the same fact while convicting the accused under the ibid provision of law. Moreover, the prosecution has also badly failed to prove the element of mens rea, actus reus and the outcome of the offence, which are the essential requirement of law for bringing the charge home against the appellant, which are the well established principle of the criminal jurisprudence. Reliance is placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Nasir Abbas v. The State" reported as 2011 SCMR 1966.

11. The above overall discussion leads this court to a definite conclusion that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and while acquitting an accused even a single reasonable doubt is sufficient. Reliance in this respect may be placed on the judgments delivered by the Hon'ble Supreme Court of Pakistan in the cases reported as 1997 SCMR 449 and 2007 SCMR 1825. Further reliance in this respect may also be placed on the judgment delivered by Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State" reported as 2009 SCMR 230 where it has been held; "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

12. Judged and considered from all angles, we are of the firm view that prosecution has failed to substantiate its case against the appellant through cogent, trustworthy and confidence inspiring evidence, however, the leaned trial Judge while convicting the appellant has committed gross illegality, causing miscarriage of justice by not appreciating the entire evidence available on record. Resultantly, we, while allowing this appeal, set-aside conviction and sentences of the appellant recorded by learned trial Judge vide impugned judgment dated 12.09.2024 and acquit him of the charges levelled against him. He be set at liberty forthwith, if not required in any other case. These are detailed reasons for our short order of even date. JK/63/P Appeal allowed.